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NORTH  CAROLINIANA 


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CASES 


of- 


HABEAS  CORPUS, 


DECIDED  BY  THE 


SUPREME    COURT' 


OF 


NORTH   CAROLINA 

AT  THE  JUKE  TERM,  1863,. 


BY  HAMILTON  C.  JONES,.  Esq., 

REPORTER. 


SALISBURY,  N.  C. 
J.     J.     BRUNEK,     PRINTER. 


.     *  1863. 


CASES  AT  LAW, 

ARGUED  AND  DETERMINED 

IN  THE 

SUPREME  COURT  OF  NORTH  CAROLINA, 
AT  RALEIGH. 


JUKE  TERM,  1803. 


IN  THE  MATTER  OF  J.  0.  BRYAN.* 

HABEAS   CORPUS. 

The  Courts  and  Judges  of  the  States  have  concurrent  jurisdiction  with  the 
Courts  and  Judges  of  the  Confederate  States  in  the  issuing  of  writs  of  habeas 
corpus,  and  in  the  enquiring  into  the  causes  of  detention,  even  where  such 
detention' is  by  an  officer  or  agent,  of  the  Confederate  States. 

The  courts  of  this  State,  as  well  as  the  individual  Judges,,  have  jurisdiction  to 
issue  writs  of  habeas  corpus  and  to  have  the  return  made  to  them  in  term 
time  and,  as  a  court,  to  consider  and  determine  of  the  causes  of  detention. 

A  person  liable  to  military  service,  as  a  conscript,  under  the  Act  of  Congress  of 
April,  1862,  and  who,  by  virtue  of  the  9th  section  of  the  act,  regularly 
procured  a  discharge  by  furnishing  a  proper  substitute,  cannot  again  be  en- 
rolled as  a  conscript  under  the  act  of  September,  18G2. 

*Judge  Manly  was  absent  during  the  greater  part  of  the  term  on  account 
of  sickness,  and  did  not  participate  in  the  consideration  of  any  of  the  cases  of 
habeas  corpus  decided  at  this  term. 


IN-  THE  SUPREME  COURT. 


In  the  matter  of  Bryan. 


Bryan,  the  applicant,  petitioned  to  the  Supreme  Court, 
at  the  present  term,  for  a  writ  of  habeas  coepds,  alleging 
that,  being  between  the  ages  of  eighteen  and  thirty-five 
.  years,  he  procured  a  substitute,  who  was  duly  received  by 
Peter  Mallett,  then  Major  in  command  of  the  conscript  camp, 
near  Raleigh,  and  the  chief  enrolling  officer  of  the  State,  and 
that  the  said  Major  Peter  Mallett,  on  the  29th  day  of  July, 

1862,  gave  him  a  discharge  for  the  war ;  that  the  age  of  the  said 
substitute  was  thirty-nine  years  ;  that  on  the  16th  day  of  June, 

1863,  he  was  arrested  as  a  conscript,  and  was  at  the  date  of  his 
petition  in  the  custody  of  Lieut.  J.  D.  PL  Young,  of  Franklin 
county,  as  a  conscript,  under  the  second  law  for  raising  con- 
scripts, (September,  1862,)  and  that  the  said  Lieut.  Young  is 
about  to  carry  him  to  Camp  Holmes,  a  rendezvous  for  con- 
scripts, near  the  city  of  Raleigh.  The  prayer  of  the  petition 
is  for  a  writ  of  habeas  corpus,  to  enquire  into  the  cause  of  de- 
tention of  the  said  J.  0.  Bryan  and  for  a  discharge.  The 
Court  ordered  the  writ,  which  was.accordingly  issued  by  the 
clerk,  and  was  returned  with  this  endorsement:  "  I  accept  the 
service  of  this  writ  and  return  for  answer:  that  the  facts  set 
forth  in  the  petition  arc  substantially  true,  and  that  I  arrested 
him  by  an  order  of  the  enrolling  officer  for  5th  congressional 
district.  J.  D.  IT.  Young, 

*  Lieut.  40th  Rcg't.  %  C.  Militia." 

On  the  return  of  the  writ  a  day  was  given  in  Court  for  the 
hearing  of  the  case,  and  as  a  preliminary  to  the  consideration 
of  the  facts  stated  in  the  petition,  the  Court  requested  argu- 
ments from  gentlemen  present,  on  the  question,  whether  this 
Court  and  the  other  courts  of  superior  jurisdiction  and  the 
Judges  individually  of  this  State,  have  jurisdiction  to  issue 
writs  6T  habeas  corpus,  and  to  consider  the  causes  of  detention, 
where  the  imprisonment  or  detention  was  under  the  authori- 
ty of  the  Confederate  Government.    Thereupon, 

Mr.  Moore,  in  support  of  the  jurisdiction,  argued  asTollows : 
1.  The  jurisdiction  of  the  States  in  cases. of  habeas  corpus, 
is  strongly  maintained  by  the  Federalist,  No.  82.    "  Its  opin- 
ion has  always  been  considered  of  great  authority.    It  is  a  com- 


JUNE  TEEM,  1863. 


In  the  matter  of  Bryan. 


plete  commentary  on  our  constitution,  and  is  appealed  to  by  all 
parties  in  the  questions  to  which  the  instrument  has  given 
birth.  Its  extrinsic  merit  entitles  it  to  this  high  rank;  and  the 
part  two  of  its  authors  performed  in  framing  the  constitution, 
put  it  very  much  in  their  power  to  explain  the  views  with 
which  it  was  framed.  These  essays  having  been  published 
while  the  constitution  was  before  the  nation  for  adoption  or 
rejection,  and  having  been  written  in  answer  to  objections 
founded  entirely  on  the  extent  of  its  powers,  and  on  its  dimi- 
nution of  State  sovereignty,  are  entitled  to  the  more  consid- 
eration," &c,  per  Marshall,  Ch.  Jus. ;  in  Cohens  v.  Virginia, 
6  Wheat,  418. 

2.  The  judicial  annals  of  the  country,  for  more  than  half  a 
century  past,  affirm  it  with  a  unanimity  rarely  witnessed  on 
any  great  legal  and  constitutional  question. 

The  jurisdiction  is  settled  in  New  York ;  Ferguson 's  case, 
9  Johns,  239  ;  Stacey's  case,  10  ilk  328  ;  Carlton's  case,  7 
Cow.  471 ;  United  States  v.  Wyngali,  5  Hill,  16  ;  1  Kent's 
Com.  (8  ed.)  440.  In  New  Hampshire,  State  v.  Dimmick,  12 
N.  II.  Rep.  197.  In  Massachusetts,  Commonwealth  v.  Har- 
rison, 11  Mass.  Rep.  63  ;'  Same  v.  Vushing,  ib.  67  ;  Same  v. 
Doions,  24  Pick.  227 ;  Sim's  case,  7  Gush.  285  ;  Lewis'  case, 
reported  in  2  N.  0.  Law  Repos.  747.  In  Pennsylvania  ;  Com- 
monwealth v.  Uolloioay,  4  13in.  512 ;  Zockingtoti's  case,  9 
Brightly,  269  ;  Commonwealth  v.  Fox,  7  Barr,  336.  In  New 
Jersey ;  State  v.  Brearly,  2  South.  555.  In  Maryland ;  Ex 
Parte  Almeida.  In  Virginia ;  Ex  Parte  Pool,  and  Pleasants' 
case,  Hurd  on  Hab.  Corp.  190 — 1.  In  North  Carolina  ;  Ex 
Parte  Mason,  1  Mur.  336,  and  note  to  Shorner's  case,  report- 
ed in  1  Car.  Law  Repos.  at  5S  ;  Lewis'  case,  ante,  was  doubt- 
less selected  and  reported  in  this  State  by  the  learned  Chief 
Justice  Taylor,  as  containing  the  judicial  opinion  of  North 
Carolina  on  this  subject.  It  has  been  uniformly  so  regarded 
fey  the  profession.  In  South  Carolina ;  5  Halls'  Law  Jour- 
nal, 497 ;  1  Kent's  Com.  440,  n.  c.  In  Georgia  j  Hurd  on 
Hab.  Corp,  168-9. 


m  THE  SUPREME  COURT. 


In  the  matter  of  Bryan. 


In  some  of  the  cases,  counsel  for  the  United  States  appear- 
ed in  the  State  courts  without  opposing  their  jurisdiction. 

The  opinions  of  State  Judges  disclaiming  jurisdiction  are  few. 
Chief  Justice  Kent's  in  Ferguson's  case,  the  ablest  to  be  found, 
delivered  in  1812,  was  forever  surrendered  by  him  in  1813, 
without  a  struggle,  in  Stacy's  case  ;  and  in  1828,  he  said  in 
his  Commentaries,  "  the  question  was  settled."  The  error  of  his 
reasoning  is  based  upon  the  idea,  that  the  proper-  test  wheth- 
er a  State  .court  has  jurisdiction  of  any  case  of  habeas  corpus 
is,  whether  it  may  take  jurisdiction  of  every  matter  connected 
therewith,  however  remotely. 

This  is  not  the  test.  The  case  of  imprisonment  is  a  com- 
plete and  independent  case  of  itself.  The  Supreme  Court  of 
this  State  may  hear  and  determine  the  case  of  a  person  arrest- 
ed for  homicide,  yet  it  has  no  jurisdiction  over  the  homicide. 

The  of  opinions  of  Judge in  South  Carolina  in  1819, 

cited  in  Hurd,  189,  and  that  of  Judge  Nelson  of  New  York, 
a  Federal  Judge,  assert  that  a  State  court  has  no  power  to 
pronounce  an  act  of  Congress  unconstitutional — this  is  the 
lasts  of  their  opinion. 

Judge  McLean's  opinion,  Hurd,  200,  presents  a  case  of  a 
quasi  adjudication,  which  placed  the  prisoner  beyond  the  ju- 
risdiction of  the  State  tribunals. 

The  doctrine  of  the  State  tribunals,  in  regard  to  the  exer- 
cise of  their  jurisdiction  in  cases  of  restraint  of  the  person  un- 
der color  of  Confederate  authority,  is  this  :  The  writ  cannot 
be  used  by  them  to  defeat  the  exercise  of  a  jurisdiction  al- 
ready begun  by  a  Confederate  Court  or  a  judicial  officer  and 
still  pending :  or  to  exercise  a  collective  jurisdiction  over  any 
Confederate  Court  or  judicial  officer. 

It  is  the  same  as  it  is,  generally,  in  the  State  tribunals- 
among  themselves,  where  a  Judge  or  a  State  Court  is  called 
on  to  hear  the  case  of  one  imprisoned  or  arrested  under  color 
of  another  State  judicial  authority — the  same  as  in  England, 
1  Chit.  Cr.  L.  104-5.  The  true  line  is  laid  down  in  Ex  parte 
JPool,  ante,  and  well  illustrated  by  the  cases  cited  in  Hurd 
335,  et  seq.    The  rule  is  well  established,  and  there  is  little 


JUNE  TERM,  1863. 


In  the  matter  of  Bryan. 


danger  of  a  conflict ;  not  so  much,  by  far,  as  there  is  between 
the  opinions  of  the  District  Confederate  Judges  of  the  several 
States,  while  there  is  no  Supreme  Court  to  settle  the  law. 

The  case  of  Ahleman  v.  Booth,  21  How.  506,  is  correctly 
decided.  The  facts,  which  are  particularly  stated  by  Chief 
Justice  Tane3r,  present  the  two  propositions  so  clearly  an- 
nounced by  him  on  p.  514  and  515.  Both  of  these  proposi- 
tions are  disposed  of  by  the  Chief  Justice  in  precise  accord- 
ance with  the  rule  before  stated.  They  find  no  support  in  the 
practice  of  a  single  State,  which  before  that  time  had  under- 
taken to  exercise  concurrent  jurisdiction.  They  are  announc- 
ed by  the  Chief  Justice  p.  514,  to  be  "  new  in  the  jurispru- 
dence of  the  United  States,  as  well  as  of  the  States." 

It  cannot  be  supposed  that  the  Court,  without  any  necessi- 
ty for  it,  intended,  without  ceremony,  to  throw  down  and  tread 
with  silent  contempt  on  the  decisions  of  the  able  Judges  of 
ten  States,  made  and  repeated  through  a  period  of  fifty  years. 

If  the  opinion  is  properly  interpreted  in  the  construction 
contended  for  by  the  Secretary  at  War,  it  is  a  mighty  on- 
slaught on  those  reserved  judicial  rights  of  the  States  so  ably 
maintained  and  defended  by  that  very  eminent  jurist  and 
statesman,  the  author  of  No.  82  of  the  Federalist ;  and  strikes 
a  no  less  blow  on  the  eminent  Chief  Justice  Marshall,  who 
has  bestowed  on  it  his  immortal  praise. 

Every  recent  alteration  of  the  Federal  constitution  by  the 
Confederate  States,  is  made  with  a  purpose  to  contract  the 
powers  of  the  general  government  and  enlarge  those  of  the 
States ;  and  many  alterations  of  the  laws  are  significant  of 
the  same  purpose.  The  extensions  of  the  writ  of  habeas  corpus 
by  the  acts  of  Congress  of  March  2,  1832,  and  Aug.  29, 1842, 
the  former  made  in  the  nullification  times  to  reach  the  cases 
of  such  as  might  be  confined  by  State  tribunals  while  obeying 
the  laws  of  Congress,  and  the  latter,  to  meet  such  cases  as 
McLeod's,  which  occurred  in  ISTew  York,  are  wholly  omitted 
in  the  judiciary  act  of  March  16,  1861.  It  is  conceded  that  a 
State  court  may  issue  the  writ  for  every  prisoner ;  but  it  is 
contended  that  if  upon  the  return,  it  appear  the  prisoner  is 


IN  THE  SUPREME  COTTKT. 


In  the  matter  of  Bryan. 


confined  under  color  of  an  alleged  act  of  Congress,  he  must 
be  remanded.  How  is  the  act  to  be  made  appear?  It  is  an- 
swered, all  public  acts  are  judicially  known.  Suppose  the. 
Court  is  satisfied  that  there  is  no  such  act  ?  It  is  answered 
that,  of  course,  the  prisoner  must  be  discharged.  Suppose 
the  Court  are  satisfied  that  the  act,  though  not  by  express 
words,  yet  by  clear  implication,  is  repealed  ?  The  same  judi- 
cial knowledge  of  the  nullity  of  the  act  exists,  and  here,  again, 
the  prisoner  must  be  discharged.  But  suppose,  in  the  opin- 
ion of  the  Judge,  the  act  is  manifestly  unconstitutional,  can 
there  be  any  difference  in  the  judicial  mind  between  a  repeal- 
ed act  and  an  unconstitutional  act  ?  Suppose  an  act  passed  to 
authorise  the  Secretary  at  War,  "  without  warrant  or  proba- 
ble cause  supported  b}7  affidavit,"  to  have  arrested  all  civil- 
ians whom  he  might  suspect  of  disloyalty,  and  a  prisoner  thus 
arrested  should  be  brought  up  by  habeas  corpus  before  a  State 
tribunal,  it  is  conceded,  that  if  the  Court  cannot  look  at  the 
act,  he  must  be  discharged  under  the  constitution  :  And  it  is 
further  conceded,  that  the  act  is  unconstitutional  and  void  in 
law,  yet,  it  is  contended  that  the  Court  cannot  see  the  consti- 
tution, and  can  only  see  the  act;  and  for  the  time  the  func- 
tions of  the  Court,  sworn  to  support  the  constitution  and  only 
such  laws  as  are  "  made  pursuant  thereto,"  are  to  be  utterly 
suspended,  attended  by  the  consequent  absurdity,  that  in  the 
most  trifling  of  all  causes,  the  Court  must  regard,  and  in  the 
greatest  of  all  causes,  it  must  disregard  the  supreme  law  of 
the  land.  In  the  former  the  true  law,  and  in  the  latter,  the7 
false  law  is  to  be  administered. 

A  doctrine  which  allows  a  court  to  perceive,  judicially, 
that  one  valid  act  of  legislation  is  annulled  by  another  and 
subsequent  one,  and  yet  forbids  the  same  court  to  judicially 
see  that  an  act  of  temporary  legislation  is  annulled  by  an  an- 
terior, unrepealable  and  inconsistent  law,  does  not  belong  to 
the  science  of  law. 

The  State  courts  have  not  adopted  the  construction  insisted 
on,  but  still  maintain  a  concurrent  jurisdiction  in  this  and 
similar  cases.     In  Isaacs  v.  Claiborne,  decided  in  March  last, 


JUNE  TEEM,  1863. 


In  the  matter  of  Bryan. 


by  Judge  Lyons,  of  Virginia,  he  enjoined  the  defendant  from 
impressing  private  property  for  the  government  under  orders 
from  the  Secretary  at  "War,  and  was  not  deterred  from  exer- 
cising jurisdiction,  by  objections  tending  to  place  the  case  be- 
yond the  State  courts.  The  powers  claimed  by  the  officers, 
he  tested  by  the  Confederate  Constitution,  the  law  of  emi- 
nent domain  in  the  government,  and  the  emergency  of  the 
occasion  ;  and  of  all. of  them  he  judged  himself.  Certainly 
the  Confederate  Judge  would  have  had  jurisdiction  of  this 
case  also,  the  wrong  being  done  by  high  officers  of  that  gov- 
ernment, under  color  of  Confederate  authority. 

No  time  could  be  less  fortunate  than  now  to  overthrow  the 
guards  of  personal  liberty.  No  time  less  auspicious,  for  the 
honest  fame  of  a  high  judicial  tribunal,  to  listen  to  the  se- 
ductions or  menaces  of  power. 

A  denial  of  jurisdiction  to  the  States,  is  little  short  of  an 
abrogation  of  the  "great  palladium  of  personal  liberty." 

In  all  the  past  exertions  to  concentrate  power,  none  have 
been  so  dangerous  to  liberty,  and  all  of  them  together  could 
not  so  humble  the  dignity  and  sovereignty  of  the  States. 

Mr.  Strong,  District  Attorney  of  the  Confederate  States, 
with  whom  was' Mr.  Bragg,  contra,  argued  as  follows  : 

The  true  question  is,  has  a  State  Court  the  right,  by  Writ  of 
Habeas  Corpus,  or  otherwise,  to  interfere  with  and  thwart 
officers  of  the  Confederate  States,  acting  in  the  exercise  of 
authority  under  a  law  of  that  government?  The  right  is  de- 
nied as  incompatible  with  the  general  powers  granted  by  the 
constitution  to  that  government,  which  government  would 
become  inefficient  in  its  action,  and  soon  fall  into  contempt, 
were  the  right  generally  exercised.       v 

In  Fergusons  case,  9th  John's.  Rep.  page  239,  this  view  is 
ably  sustained  by  Judge  Kent.  He  says,  "  the  present  case 
being  one  of  enlistment  under  color  of  authority  of  the  Uni- 
ted States,  and  by  an  officer  of  that  government,  the  Federal 
courts  have  complete  and  perfect  jurisdiction  in  the  case  ;  and 
there  is  no  need  of  the  jurisdiction  or  interference  of  the  State 
courts  ;  nor  does  it  appear  to  me  to  be  fit  that  the  State  courts 


IN  THE  SUPREME  COURT. 


In  the  matter  of  Bryan. 


should  be  enquiring  into  the  abuse  of  the  authority  of  the 
general  government.  Nevertheless,  cases  may  be  supposed 
of  the  abuse  of  power  by  the  officers  of  the  government  of 
the  United  States,  but  the  courts  of  the  United  States  have 
competent  authority  to  correct  all  such  abuses,  and  they  are 
bound  to  exercise  it.  *  *  *  "We  have  no  reason  to  doubt 
of  their  readiness,  as  well  as  ability  to  correct  and  punish 
every  abuse  of  power  under  that  government.  *  *  * 
My  conclusion  is  that  for  the  Court  to  interpose  in  this  case 
would  be  to  exercise  power  without  any  jurisdiction."  Judge 
Kent  never  changed  this  opinion.  In  Stacy's  case.  10th  John's. 
328,  he  yields  to  his  associates,  and  in  his  commentaries  an- 
nounces a  fact  simply,  when  he  says,  "  the  question  is  settled." 

Mr.  Moore  contended  that  this  reasoning  failed  in  its  appli- 
cation to  the  Confederate  government,  and  argued  that  the 
judiciary  act  of  the  United  States  gave  to  the  Federal  Judges 
jurisdiction  by  habeas  corpus  in  cases  of  confinement,  under 
color  of  authority  of  the  U.  States,  as  well  as  by  by  virtue 
of  iliat  authority ;  whereas,  the  Confederate  Judges  have 
jurisdiction  only  in  cases  of  restraint,  by  virtue  of  the  Con- 
federate authority,  Judiciary  Act  of  the  Confederate  States, 
sec.  16  :  that  "  color  of  authority"  was  a  cloak  for  no  author- 
ity, and  "virtue  of  authority"  was  valid,  legal  authority; 
that,  therefore,  the  State  Courts  must  have  jurisdiction  in  the 
former  case,  or  the  citizen  be  without  remedy,  as  the  Confed- 
erate Courts  have  jurisdiction  only  in  the  latter  case,  that  is, 
only  in  the  case  where  the  applicant  can  derive  no  possible 
benefit  from  the  writ,  and  must  be  remanded  of  course.  Egre- 
gious fallacy ! 

Judge  Cheves  of  South  Carolina,  in  a  learned  opinion 
published  in  the  12th  vol.  of  Niles'  Regiter,  declined  to 
take  jurisdiction  over  the  matter  of  the  discharge  of  one 
imprisoned  under  process  issued  by  authority  of  the  Uni- 
ted States,  and  the  Recorder  at  Charleston  lias  refused  to  in- 
terfere with  the  detention  in  the  army  of  an  infant  only  sixteen 
years  old,  maintaining  that  the  decision  of  Judge  Cheves  has 
since  been  acquiesced  in  as  a  correct  exposition  of  the  law  in 


JUNE  TERM,  1863. 


In  the  matter  of  Bryan. 


South  Carolina.     Bx  parte  Rhodes  12,  ISTiles'  Register  264. 
In  He  Benj.  Sauls,  Charleston  Courier,  Oct.  20,  1862. 

The  opinion  of  Judge  Kent  has  been  uniformly  sustained 
by  the  Judges  of  the  Federal  courts.  In  re  Veremaitre,  Am. 
Law  Journal,  438,  the  Court  said  : '"  a  State  Court  has  no  ju- 
risdiction on  habeas  corpus  to  discharge  a  soldier  or  sailor  held 
under  law  of  the  United  States."  The  case  of  Norris  v. 
Newton,  5  McLean,  99,  is  to  the  same  effect  as  is  also  Judge 
Nelson's  charge  to  the  grand  jury  of  the  circuit  court  for  the 
Southern  District  of  2sTew  York,  quoted  in  Hurd  on  Habeas 
Corpus,  pp.  198  and,  9.  In  the  case  of  Ableman  v.  Booth, 
21st  Howard's  Rep.  506,  Ch.  Jus.  Taney  in  delivering  the 
unanimous  opinion  of  the  Court,  said :  "  The  powers  of  the 
General  Government,  and  of  the  Slate,  although  both  exist, 
and  are  exercised  within  the  same  territorial  limits,  are  yet 
separate  and  distinct  sovereignties,  acting  separately  and  in- 
dependently of  each  other,  within  their  respective  spheres. — 
And  the  sphere  of  action  appropriated  to  the  United  States 
is  as  far  be#yond  the  reach  of  the  judicial  process  issued  by  a 
State  judge  or  State  court,  as  if  the  line  of  division  were 
traced  by  land-marks  and  monuments  visible  to  the  naked 
eye.  And  the  State  of  Wisconsin  has  no  more  power  to  au- 
thorize these  proceedings  of  its  judges  and  Courts  than  it 
would  have  had  if  the  prisoner  had  been  confined  in  Michi- 
gan, or  in  any  other  State  of  the  Union,  for  an  offence  against 
the  laws  of  the  State  in  which,  he  was  imprisoned."  "  We  do 
not  question  the  authority  of  the  State  court  or  judge  to  issue 
the  writ  of  habeas  corpus,  provided  it  does  not  appear,  when 
the  application  is  made,  that  the  person  imprisoned,  is  in 
custody  under  the  authority  of  the  United  States.  And,  it  is 
the  duty  of  the  person  having  the  custody  of  the  prisoner,  t,o 
make  known  to  the  judge  or  court,  by  a  proper  return,  the 
authority  by  which  he  holds  him.  But,  after  the  return  is 
made,  they  can  proceed  no  further.  The  prisoner  is  then 
within  the  dominion  and  exclusive  jurisdiction  of  another 
government.  If  he  has  committed  an  offence  against  their 
laws,  their  tribunals  alone  can  punish  him.     If  he  is  wrong- 


10  IN  THE  SUPKEME  COURT. 

In  the  matter  of  Bryan. 

fully  imprisoned,  their  judicial  tribunals  can  release  him,  and 
afford  him  redress.  No  State  judge  or  court,  after  it  is  judi- 
cially informed  that  the  party  is  imprisoned  under  the  au- 
thority of  the  United  States,  has  any  right  to  interfere  with 
him,  or  to  require  him  to  be  brought  before  it.  And  if  the 
authority  of  a  State  should  attempt  to  control  the  principal 
or  other  authorized  officer  or  agent  of  the  United  States,  in 
the  custody  of  his  prisoner,  it  would  be  his  duty  to  .resist  it. 
No  judicial  process  can  have  any  lawful  authority  outside  of 
the  limits  of  the  jurisdiction  of  the  Judge  or  court  by  whom 
it  is  issued  ;  and  an  attempt  to  enforce  if  beyond  these  bound- 
aries, is  nothing  less  than  lawless  violence." 

It  is  contended,  that  inasmuch  as  Booth  was  confined  un- 
der the  order  of  a  court,  the  case  is  no  authority,  for  the  posi- 
tion assumed,  and  that  the  above  quoted  language  is  a  mere 
dictum.  But,  if  it  bo  true,  that  it  is  the  duty  of  the  State 
to  protect  its  citizens  against  wrong  from  cm  outside  hostile 
government,  which  is  the  very  basis  upon  which  the  argument 
proceeded,  what  peculiar  sanctity  is  there  in  &  judicial  wrong, 
that  it  should  not  be  relieved  against?  A  citizen  of  North 
Carolina  is  grievously  wronged  by  what  is  known  to  be  the 
corrupt  decision  of  a  servile  Confederate  court ;  he  comes 
'to  his  protecting  sovereign  for  relief;  would  he  not  feel  it  a 
mockery  to  be  told  that  as  the  wrong  was  perpetrated  by  a 
court,  he  must  submit !  The  true  principle  in  the  case  is,  that 
a  clash  of  Confederate  and  State  authority  should  be  avoid- 
ed, if  of  the  authority  of  the  judicial  power;  how  much  more', 
of  the  executive  and  legislative,  which  wield  the  purse  and 
sword ! 

I  am  fortified  in  taking  this  view  by  that  very  distinguish- 
ed jurist,  Judge  Campbell,  now  Assistant  Secretary  of  War, 
and  by  the  able  opinion  of  Chief  Justice  "Walker,  in  fhe  ease 
Hill,  recently  decided  by  the  Supreme  Court  of  Alabama. 
To  that  opinion  the  attention  of  the  Courtis  specially  invited. 
The  facts  were,  a  party  claiming  exemption  from  military  ser- 
vice by  reason  of  physical  infirmity,  applied  to  the  Probate 
Court  for  a  writ  of  habeas  corpus^  which  was  granted.    Hill, 


JUNE -TERM,  1863.  11 

In  the  matter  of  Bryan. 

the  officer,  who  obtained  the  petition,  applied  to  the  Supreme 
Court  for  a  writ  of  prohibition,  on  the  ground  that  the  Pro- 
bate Court  had  no  jurisdiction,  which  was  granted.  The 
Chief  Justice,  by  a  careful  review  of  the  Acts  of  Conscrip- 
tion, and  the  regulations  founded  on  them,  established  the 
proposition,  that  it  was  the  duty  of  the  enrolling  officer,  upon 
hearing  evidence,  and  considering  the  law,  to  decide  in  a 
Nonjudicial  manner,  upon  the  status  of  every  citizen  as  to 
his  liability  to  military  service,  and  to  act  upon  that  decision  ; 
and  after  an  elaborate  review  of  the  authorities,  concluded 
that  "the  case  was  without  the  jurisdiction  of  the  Probate 
Judge,"  and  that  the  general  rule  that  the  State  Courts  have 
concurrent  jurisdiction  with  the  Confederate  Courts  is  "sub- 
ject to  the  exception  of  those  cases  in  which  the  execution  of 
the  laws  of  the  Confederate  States  by  its  officers,  is  to  be  su- 
pervised and  controlled."  In  support  of  this  conclusion,  the 
case  of  Slocumb  v.  Mayberry,  2  Wheat  1;  cited  by  the  oppos- 
ing counsel,  is  a  direct  authority.  An  act  of  Congress  made 
it  the  duty  of  collectors  of  ports  to  seize  and  detain  ves- 
sels when  suspected  of  an  intention  to  violate  the  embargo  act  of 
April,  1808,  2nd  Statutes  at  large,  499.  M  other  words,  the 
collector  was  "  to  decide  in  a  quasi  judicial  manner  upon  the 
status  of  every  vessel,  as  to  its  liability  to"  seizure  and  deten- 
tion under  the  law,  and  to  act  upon  that  decision.  The  Su- 
preme Court  of  the  United  States  decided  that  an  action  of 
replevin  would  lie  for  the  cargo!,  because  there  was  no  law 
authorizing  the  seizures  of  cargoes,  but  that  it  would  not  lie 
for  the  vessel.  All  admit  that  this  is  a  case  in  point,  because, 
as  by  the  action  of  replevin,  the  property  is  taken  from  the 
hands  of  the  officer,  so  by  the  writ  of  habeas  corpus  is  the 
body  of  the  prisoner.  But  there  is  a  wide  difference  in  its 
application. 

The  counsel  cited  the  case  of  Isaacs  v.  Claiborne,  "decided 
in  March  last  by  Judge  Lyons  of  Yirginia,  who  enjoined  the 
defendant  from  impressing  private  property  for  the  govern- 
ment, under  orders  from  the  Secretary  of  War."  The  case  is 
not  in  point.   This  case  would  be,  if  under  the  recent  act  of  Con- 


IN  THE  SUPREME  COURT. 


In  the  matter  of  Bryan. 


gress,  regulating  impressments,  the  proper  officer  having  de- 
cided that  certain  stores  were  necessary  for  the  array,  and,  in 
accordance  with  that  decision,  having  seized  them,  a  State 
Court  should  undertake  to  take  them  from'  7iim,  by  a  writ  of 
r&plevin,or  otherwise.  Who  will  insist  upon  such  a  jurisdic- 
tion ?  If  the  officftr  should  act  corruptly  or  oppressively,  he 
would  be  liable  in  the  State  courts  in  damages  to  the  party 
grieved;  but  his  action  could  not  be  controlled — he  could  not 
be  deprived  of  the  stores.  Otherwise,  the  array  might  be  left 
to  starve. 

It  is  believed,  that  if  this  power  be  conceded  to  the  States, 
it  will  be  impossible  for  Congress  to  suspend  the  privilege  of 
the  writ  of  habeas  corpus/  and,  to  the  legal  eye,  its  suspen- 
sion is  as  necessary  under  some  circumstances,  as  its  exercise 
is  under- others. ' 

Article  1,  sec.  9,  clause  3,  of  the  constitution  declares — 
"  the  privilege  of  the  writ  of  habeas  corpus  shall  not  be  sus- 
pended, unless  when  in  case  of  rebellion  or  invasion,  the  pub- 
lic safety  may  require  it."  What  writ?  The  State  writ?  It 
surely  can  not  be  contended  that  Congress  has  the  power  to 
suspend  the  writ  which  the  father  uses  for  the  recovery  of  his 
child,  the  master  of  his  apprentice,  the  husband  of  his. wife, 
or  the  party  improperly  refused  bail  under  State  process,  of 
his  liberty.  What  writ  then  is  it?  It  is  that,  and  that  only 
which  pertains  to  the  courts  of  that  government  which  that 
constitution  has  established.  On  this  point,  the  authorities 
are  full.  Hurd,  p.  133,  says,  "it  is  a  settled  rule  of  construc- 
tion of  that  instrument,  that  the  limitations  of  power  con- 
tained in  it,  when  they  are  expressed  in  general  terms,  apply 
only  to  the  government  created  by  it.  And  although  this 
clause  has  not  been  the  subject  of  express  adjudication,  there 
is  no  doubt  that  its  construction  is  governed  by  this  rule,  and, 
consequently,  the  restriction  does  not  extend  to  the  States."  For 
this  he  cites,  among  many  other  cases,  Barron  v.  The  Mayor 
and  City  of  Baltimore,  7  Peters  243,  in  which  the  subject  is 
fully  discussed,  and  the  above  conclusion  arrived  at  by  Chief 
Justice  Marshall,  in  delivering  the  opinion  of  the  Court.- — 


JUNE  TEftM,  1863. 


In  the  matter  of  Bryan. 


Now,  if  the  courts  of  the  States  can  issue  writs  of  habeas 
corpus,  in  all  cases  where  parties  are  detained  under  Confed- 
erate authority,  and  if  Congress  cannot  suspend,  those  writs, 
is  not  the  right  of  Congress,  which  is  recognised  in  the  above 
clause  of  the  constitution,  nullified?  Why  suspend  the  priv- 
ilege of  the  writ  as  exercised  through  a  Confederate  Judge, 
when,  in  the  very  same  case,  it  may  be  exercised  through  all 
State  Judges,  which,  in  this  State,  number  eleven  ? 

The  converse  of  the  proposition  laid  down  in  the  beginning 
is  generally  true,  and  the  boundary  lines  between  the  juris- 
diction of  the  State  and  General  Governments,  has  been  well 
observed  upon  the  part  of  the  latter ;  see  Kent,  vol.  1,  p.  411  y 
Hurdl54;  Judiciary  Act  Confederate  States,  sec.  16;  Car- 
ryl  v.  Taylor,  20th  Howard. 

There  can  be  no  necessity  for  the  exercise  of  this  power  on 
the  part  of  the  States.  The  Confederate  government  is  a  free 
government,  with  the  disposition  and  the  power  to  protect  its- 
citizens  against  all  oppression  coming  from  its  own  officers. — 
It  was  framed,  as  its  preamble  declares,  "  to  secure  the  bless- 
ings of  liberty  to  ourselves  and  our  posterity."  It  is  the  de- 
velopment and  personification  of  the  most  exalted  idea  of 
freedom.  So  far  from  its  being  the  duty  of  the  States  to 
guard  against  oppression  from  the  Confederate  government, 
it  is  the  duty  of  the  Confederate  government  to  guard  against 
oppression  on  the  part  of  the  States.  Article  4,  sec.  3,  clause 
4  of  the  constitution  declares  that  "the  Confederate  States 
shall  guaranty  to  every  State  that  now  is,  or  hereafter  may, 
become  a  member  of  this  Confederacy,  a  republican  form  of 
government."  The  courts  of  this  free  government  are  open 
to  every  one.  To  them  let  him  who  is  oppressed  under  color 
of  its  authority  apply,  doubting  nothing,  but  that  he  will  find 
relief.  Let  not  the  absurdity  be  adopted,  that  it  is  the  duty 
of  the  State  to  protect  the  freedom  of  the  citizen  from  inva- 
sion by  a  government,  which  is  not  only  itself  free,  but  the 
design  of  whose  creation,  was  to  preserve  freedom. 

There  is  a  most  palpable  fallacy  underlying  that  portion  of 
the  argument  of  Mr.  Moore,  which  contends  that  the  doctrine' 


U  IN  THE  SUPKEME  COUKT. 

In  the  matter  of  Bryan. 

contended  for  by  the  government  would  lead  to  the  absurdity 
"  that  in  the  most  trifling  of  all  causes  the  Court  must  regard, 
and  in  the  greatest  of  all  causes,  it  must  disregard  the  su- 
preme law  of  the  land.  In  the  former,  the  true  law,  and  in 
the  latter  the  false  law,  is  to  be  administered."  The  fallacy 
lies  in  supposing  that  the  false  law  is  to  be  administered  or 
passed  upon  at  all  by  the  State  court.  It  is  not  so  to  he  admin- 
istered. And  although  were  it  to  be  administered,  there  would 
certainly  be  "no  difference  to  the  judicial  mind,  between  a  re- 
pealed act  and  an  unconstitutional  act,"  yet,  it  may  very  well 
be  that  in  the  one  case  the  court  may  have  jurisdiction  of  the 
question,  and,  in  the  o titer,  not.  It  might  require  less  ability 
to  decide  upon  the  repeal  than  upon  the  constitutionality  of 
an  act.  The  court  sees  both  questions  in  order  to  decide  up- 
on its  jurisdiction — a  power  which  all  courts  must  exercise  ex 
necessitate.  So  it  is  well  argued  that  the  illogical  conclusion 
which  the  counsel  arrived  at,  by  his  own  false  reasoning,  "  does 
not  belong  to  the  science  of  law." 

It  is  no  valid  argument  in  favor  of  the  right  of  the  State  - 
courts,  that  Congress,  having  failed  to  establish  a  Supreme 
Court,  there  could  be  no  uniform  rule  of  decision  among  the 
District  Judges.  The  failure  by  Congress  to  exercise  a  pow- 
er, which  it  ought  to  have  exercised,  can  give- no  right  to  this 
Court  to  exercise  a  power  which  it  does  not  possess.  It  is 
true,  in  matters  of  constitutional  law,  as  of  ordinary  morals, 
"that  two  wrongs  cannot  make  a  rig! it."  Besides,  we  are 
acting  for  posterity,  and  it  is  better  to  suffer  a  temporary  in- 
convenience, however  great,  than  to  break  down  the  bul- 
warks of  the  Constitution. 

The  old  Union  was  destroyed,  not  by  the  encroachments  of 
the  General  Government  upon  the  rights  of  the  State,  but  by 
the  encroachments  of  the  fanatical  States  of  the  north  and 
northwest  upon  the  Constitution,  especially  that  portion  which 
guaranteed  to  the  Southern  States  certain  rights,  greatly 
valued  by  them.  These  encroachments  took  the  shape  of 
i(  personal  liberty  bills,"  and  interference  of  the  courts  by  vJrits 
^f  habeas  corpus  with  the  proper  jurisdiction  of  the  General 


JfJNE  TEEM,  1863.  15 


In  the  matter  of  Bryan. 


Government.  Let  us  avoid  the  bad  "example.  Let  us  also 
remember  in  the  forcible  language  of  Judge  Stone,  in  his 
opinion  in  the  matter  of  Hill,  uhi  supra,  that  "  the  States  have 
become  constitutional,  instead  of  absolute  sovereignties,  and 
that  this  no  more  destroys  State  sovereignty,  than  does 
the  surrender  of  certain  attributes'of  natural  liberty,  destroy 
civil  liberty." 

The  following  point  was  not  made  in  the  discussion,  it  not 
having  at  the  time,  suggested'  itself.  The  exercise  of  the  ju- 
risdiction contended  for,  would,  in  many  cases,  be  impracti- 
cable. Suppose  the  Confederate  officer  should  refuse  to  obey 
the.  writ,  or  having  obeyed  it,  and  the  prisoner  having  been 
discharged,  lie  should  again  arrest  him,  and  the  officer  should 
be  attached  for  the  contempt  in  the  one  case,  or  should  be 
arrested  under  a  States-warrant  in  pursuance  of  our  statute  in 
the  other,  and  in  either  case,  the  Confederate  government 
should  avow  the  acts  of  its  officer,  and  assume  their  responsi- 
bility, the  proceeding  against  the  officer  would  at  once 
come  to  an  end,  according  to  the  principle  in  McLeodPs  case, 
and  ill  the  case  of  llruen  v.  Denman,  2d  Exchequer  Rep. 
176.  ^  ^ 

Mr.  P.  77.  Winston,  Sen'r.,  in  support  of  the  jurisdiction, 
argued  as  follows : 

By  2nd  section  of  3rd  article  of  the  Constitution  of  the  Uni- 
ted States,  it  is  provided  that  the  "judicial  power  «shall  ex- 
tend to  all  cases  in  law  and  equity  arising  under  this  Consti- 
tution, the  laws  of  the  United  States  and  treaties  made  un- 
der their  authority."  The  25th  section  of  the  Judiciary  Act 
of  the  United  States,  provides  for  appeals  and  writs  of  error 
from  State  courts  in  cases  falling  within  this  grant  of  power; 
thus  recognising  the  rule  that  an  affirmative  grant  of  jurisdic- 
tion does  not  give  exclusive  jurisdiction.  The  case  of  Hous- 
ton  v.  Moore,  5  Wheat.  1,  is  a  decision  that  an  act  of  Con- 
gress giving  jurisdiction  simply  to  courts  of  United  States  of 
a  class  of  offences,  does  not  exclude  State  courts  from  exer- 
cising jurisdiction  under  State  laws  over  the  same  class  of 
offences.    And  this  doctrine  is  explained  and  illustrated  by 


16  IN  THE  SUPREME  COURT. 

In  the  matter  of  Bryan. 

Judge  Washington  in  that  case,' and  by  Judge  Story  in  Martin 
v.  Hunter's  lessee,  1  Wheat.  336-7  and  340.  This  rule  is  re- 
cognized and  enforced  by  the  Judiciary  Act  of  the  Confeder-. 
ate  States.  Our  Constitution  declares  that  "in  all  cases  af- 
fecting ambassadors,  or  other  public  ministers  and  consuls,  and 
those  in  which  a  State  shall  be  a  party,  the  Supreme  Court 
shall  have  original  jurisdiction  ;  yet,  that  act  gives  exclusive 
jurisdiction  to  that  Court  in  cases  against  ambassadors,  &c.y. 
and  in  others  affecting  them,  jurisdiction  concurrent  with 
other  courts.     So,  of  cases  in  which  a  State  shall  be  a  party.. 

The  courts  of  this  State  have  exercised  the  power  of  reliev- 
ing persons  unlawfully  detained  by  officers  of  the  United 
States  under  color  of  authority  derived  from  them  ;  Ex  parte 
Mason,  1  Mur.  336,  and  it  is  believed  that  the  profession  have 
never  doubted  the  propriety  of  its  exercise.  Slocumb  v.  May- 
berry%2  Wheat.  1,  is  decesive  of  the  question.  If  goods  will 
be  taken  from  a  federal  officer's  custody  by  process  from  a. 
State  Court,  because  he  detained  them  wrongfully,  though  by 
color  of  an  act  of  Congress,  a  fortiori,  will  a  habeas  corpus 
lie  to  deliver  a  man  from  false  imprisonment. 

The  exclusive  jurisdiction,  of  the  Confederate  Courts  in 
criminal  cases,  is  not  invaded;  for  enquiry  into  the  lawful- 
ness of  imprisonment  by  habeas  corpus,  is  not  an  exercise  of 
criminal  jurisdiction  ;  Ex  parte  Bollman  and  Swartioout, 
4  Cranch,"  100.  Accordingly,  the  Supreme  Court  of  the  Uni- 
ted States  refused  writs  of  habeas  corpus  in  ex  parte  Kearney, 
7  Wheat.  38,  and  Ex  parte  Watkins,  3  Peters,  193,  because 
the  object  of  the  petitioners  was  to  review  the  judgments  in 
criminal  cases;  and,  though  the  court  of  common  pleas  grants 
the  writ,  it  posseses  no  cognizance  of  criminal  cases  ;  Bush- 
eVs  case,  Vaughan;   Wood's  case,  3  Wilson,  1172. 

The  claim  to  exclusive  jurisdiction  for  the  Confederate 
Courts,  is  more  emphatically  groundless,  because  their  judi- 
cial power  in  respect  of  the  chief  purposes  for  which  it  was 
given,  isin  abeyance.  These  purposes  are  to  secure  the  uniform 
administration  of  the  laws,  correspondent  to  their  uniform 
enactment ;  to  avoid  affording  causes  of  quarrel  to  foreign  na- 


JUNE  TERM,  1863.  17 

In  the  matter  of  Bryan. 

tions,  by  making  effectual  provision  for  the  impartial  and  en- 
lightened administration  of  national  law,  and  to  protect  the 
persons  and  property  of  our  own  citizens  against  violations  of 
the  constitution  of  a  State  or  the  Confederate  States.  It  is. 
manifest  that  all  these  purposes  are  frustrated  by  the  neglect 
of  Congress  to  appoint  Judges  of  the  Supreme  Court ;,,  although 
that  Court  exists,  it  having  been  established  by  the  Constitu- 
tution,  it  cannot  perform  its  functions  any  more  than  if  it 
were  not  in  existence.  The  appellate  jurisdiction  is  an  essen- 
tial part  of  the  judicial  power,  and;  the  latter  is  practi- 
cally non-existent  as  long  as  there  are  no  means^  provided  for 
exercising  the  latter.  Congress  has  shown  its  sense  of  this 
truth,  by  providing  for  writs  of  error  and:  appeals  from  the 
District  Courts  to  the  Supreme  Court. 

The  case  lately  decided  by  the  Supreme  Court  of  Alabama, 
does  not  affect  the  question  here.  The  decision  is  probably 
right.  The  Judges  differ  in.  their  reasons.  Judge  Stone 
seems  to  admit  the  jurisdiction  of  State  courts  in  such  cases  as 
this.  Chief  Justice  Walker's  reasons  for  his  opinion,  are  clear- 
ly insufficient.  The  passage  he  cites  from- Kent's  Commenta- 
ries, at  page  400,  of  the  1st  Vol.,  says,  that  it  is  settled 
that  State  courts  have  a  concurrent  jurisdiction  with  the  Fed- 
eral Courts  in  granting  writs  of  'habeas  ooiyus. 

The  decisions  of  enrolling  officers,  commandants  of  conscript 
camps,  &c,  on  the  liability  to  military  service,  cannot  be  judi- 
cial acts  ;  they  can  be  done  only  by  Judges,.,  and,  the  Consti- 
tution declares  that  the  Judges  both  of  the  Supreme  and  in- 
ferior Courts  shall  hold  their  offices  during  good  behaviour; 
Article  3,  section  1.  Besides,  if  that  were  so,  every  man  is 
liable  to  be  imprisoned  perpetually  or  indefinitely  by  the  sen- 
tence of  a  military  officer,  without  any  right  to  have  the 
cause  of  imprisonment  enquired  into  by  any  court  whatever  ; 
for  the  Supreme  Court  has  no  Judges,  and  the  District  Courts 
have  no  appellate  jurisdiction. 

Neither  do  the  cases  of  Ableman  v.  Booth,  and  United 
States  v.  Booth,  20  Howard,  506,  have  any  bearing  upon  this 
case.    They  constitute  but.  one  case  :  for  the  reversal  of  the 

2 


18  IK  THE  SUPKEME  COURT. 

fc  In  the  matter  of  Bryan. 

order  of  the  State  court,  with  respect  to  the  last  named  case, 
disposed  of  the  whole  subject.  There  is  no  likeness  between  a 
State  court  attempting  to  use  the  writ  of  habeas  corpus  as. an 
instrument  for  annulling  a  judgment  of  the  Circuit  Court  of  the 
United  States,  in  a  matter  of  crime  against  the  United  States 
and  the  case  before  this  Court — the  use  of  the  writ  for  the  pur- 
pose of  delivering  from  unlawful  imprisonment  a  citizen  de- 
tained by  a  Confederate  State's  officer  by  color,  but  not  by  vir- 
tue of  authority  of  an  act  of  Congress. 

— -  v.  Booth,  has  no  likeness  to  this  case.  The  peti- 
tioner was  in  custody  of  the  Marshall  by  virtue,  not  by  color 
of  judicial  process.  Neither  do  any  of  Chief  Justice  Taney's 
remarks,  in  giving  judgment,  bear  on  this  case.  They  are  to 
the  same  effect  as  those  of  Chief  Justice  Marshall  in  Slocumb  v. 
Mayberry,  to  wTit :  the  State  courts  have  no  authority  to  take 
either  a  man  or  goods  out  of  the  custody  of  an  officer  of  the 
United  States  detaining  him  or  them  under  the  authority 
given  by  the  laws  of  the  United  States,  and  not  merely  by 
color  of  such  authority. 

Pearson,  C.  J.  Governor  Yance  having  informed  the 
Judges  that  the  Secretary  of  War  puts  his  objection  to  the 
release  of  citizens  who  have  been  arrested  as  conscripts  by 
the  officers  of  the  Confederate  States  after  they  had  been  dis- 
charged by  the  State  tribunals  on  writs  of  habeas  corpus,  up- 
on the  ground  that  the  courts  of  the  State  had  no  jurisdiction 
over  the  subject;  the  Court  directed  the  question  to  be  argu- 
ed as  preliminary  to  the  disposition  of  the  many  applications 
before  it  by  writs  of  habeas  corpus,  and  assigned  a  day.  As 
the  organ  of  the  Court,  I  addressed  a  communication  to  His 
Excellency  the  President  of  the  Confederate  States,  informing 
him  of  the  fact,  and  that  the  Court  would  be  pleased  to  hear 
an  argument  by  the  Attorney  General  of  the  Confederate 
States  or  any  other  gentleman  of  the  bar  he  might  appoint 
for  the  purpose.  The  question  has  been  fully  argued  by  Mr. 
Moore  and  Mr.  Winston  in  support  of  the  jurisdiction,  and  by 


JUNE  TEftM,  1863.  19 

In  the  matter  of  Bryan.  * 

Mr.  Strong,  District  Attorney  of  the  Confederate  States,  with 
whom  was  associated  Mr.  Bragg,  against  the  jurisdiction. 

We  have  devoted  to  the  subject  that  temperate  and  mature 
deliberation  which  its  great  importance  called  for,  and  the 
Court  is  of  opinion  that  it  has  jurisdiction  and  is  bound  to  ex- 
ercise it,  and  to  discharge  the  citizen  whenever  it  appears  that 
he  is  unlawfully  restrained  of  his  liberty  by  an  officer  of  the 
Confederate  States.  If  the  restraint  is  lawful,  the  Court  dis- 
misses the  application  and.  remauds  the  party.  If,  on  the  oth- 
er hand,  the  restraint  is  unlawful,  the  Court  discharges  him. 
The  lawfulness  or  unlawfulness  of  the  restraint  necessarily  in- 
volves the  construction  of  the  act  of  Congress  under  which 
the  officer  justifies  the  arrest,  and  the  naked  question  is,  by 
whom  is  the  act  of  Congress  to  be  construed  ?  by  the  Secre- 
tary of  War  and  the  subordinate  officers  he  appoints  in  order 
to  carry  the  conscription  acts  into  effect,  or  by  the  Judiciary  ? 
or  if  the  latter,  have  the  State  courts  jurisdiction  over  the 
subject?  This,  as  was  well  remarked  by  Mr.  Strong,  is  a  dry 
question  of  Constitutional  Law,  and  its  decision  should  not 
be  influenced  by  collateral  disturbing  causes. 

The  jurisdiction  of  the  State  courts  over  the  subject,  is  set- 
tled in  this  State,  and  has  been  so  considered  as  far  back  as 
the  traditions  of  the  Bar  carry  us.  In  1815,  Judge  Taylor 
reported  in  the  2d  North  Carolina  Law  Repository,  57,  Lew- 
is'case,  decided  by  the  Supreme  Court  of  Massachusetts,  in 
which  the  Court,  upon  a  habeas  corpus  to  an  officer  of  the 
United  States,  took  jurisdiction  and  discharged  a  soldier  on 
the  ground  that  the  enlistment  was  not  valid  by  the  pro- 
per construction  of  the  act  of  Congress.  That  decision  was 
concurred  in  by  the  bench  and  bar  in  this  State,  and  the  ju- 
risdiction has  ever  since  been  exercised  by  our  courts  and 
Judges,  and  treated  as  "settled"  until  the  present  term  of 
the  Court.  In  Mason's  case,  the  jurisdiction  was  exercised, 
and  a  soldier  of  the  United  States  was  discharged  by  the 
Court;  1st  Murphy  336— (1809.)  See  also  North  Carolina 
Law  Repository,  note.  We  have  traditions  of  other  eases 
tried  by  single  Judges,  but  no  reports  were  made  of  them.—- 


30  IN"  THE  SUPREME  COURT. 


In  the  matter  of  Bryan. 

About  1847,  while  on  the  Superior  Court  Bench,  I  exercised 
the  jurisdiction,  and  a  soldier  was  brought  before  me  at  Smith- 
Tille,  on  a  writ  directed  to  the  officer  in  command  at  Fort 
Caswell — Capt.  Childs,  who  afterwards  so  highly  distinguish- 
ed himself  in  Mexico.  In  the  matter  of  Mills,  who  claimed 
exemption  as  a  shoemaker  during  the  past  winter,  in  my  let- 
ter to  Judge  Battle  and  Judge  Manly,  asking  their  opinion  as 
to  the  construction  of  the  conscription  and  exemption  acts,  all 
three  of  us  took  it  for  granted  that  the  question  of  jurisdic- 
tion was  settled,  and  in  the  opinion  filed  by  me  in  that  and 
all  of  the  other  cases  which  have  been  before  me,  I  set  forth 
that  the  power  of  the  State  Judges  to  put  a  construction  up- 
on the  acts  of  Congress,  so  far  as  they  involve  the  rights  of 
the  citizen,  (as  distinguished  from  mere  military  regulations,) 
is  settled,  and  all  of  the  other  Judges  in  this  State,  who  have 
issued  writs  of  habeas  corpus,  have  so  treated  it — (Judges 
Battle,  French,  Heath  and  Shipp.) 

The  question  has  been  considered  as  settled  in  the  other 
States,  and  their  courts  have,  in  many  eases,  assumed  .and  ex- 
ercised the  jurisdiction,  and  it  has  been  conceded  by  the 
Courts  of  the  United  States.  Chancellor  Kent,  1st  vol.  440, 
referring  to  Stacy's  ease,  says:  "The  question  was  therefore 
settled  in  favor  af  a  concurrent  jurisdiction  in  that  case,  and 
there  has  been  a  similar  decision  and  practice  hj  the  Courts 
of  other  States."  In  the  note,  many  cases  are  referred  to. — 
Hurd,  in  his  treatise  on  Habeas,  Corpus,  under  title  "  concur- 
rent jurisdiction,"  refers  to  and  collates  a  great  many  cases- 
which  fully  support  his  conclusion  :  "  It  may  be  considered 
settled  that  State  Courts  may  grant  the  writ  in  all  cases  of  il- 
legal confinement  under  the  authority  of  the  United  States.'7 
So,  if  any  question  can  be  settled  by  authority T  the  concur- 
rent jurisdiction  of  the  State  Courts,  must  be  treated  as  set- 
tled. It  must  be  presumed  that  this  long  series  of  cases  which 
establish  the  concurrent  jurisdiction  of  the  State  Courts,  and 
their  power  to  put  a  construction  on  acts  of  Congress,  when 
necessary  to  the  decision  of  a  case  before  them,  is  supported 
by  the  most  clear  and  satisfactory  reasoning,  and  it  would  be 


JUNE  TERM,  1863.  21 


In  the  matter  of  Bryan. 


idle. to  attempt  to  add  any  thing  to  what  has  been  said  by  the 
Many  able  Judges  who  have  discussed  the  question.  I  will 
•content  myself  by  making  a  few  extracts  from  some  of  the 
opinions.  Tilghman,  Chief  Justice,  in  LocldngtorCs  case, 
Brightly 's  Reports  269,  (in  1818,)  says :  "  It  is  to  be  observed 
that  the  authority  of  the  State  Judges  in  eases  of  habeas  cor- 
pus, emanates  from  the  several  States,  and  not  from  the  Uni- 
ted States.  In  order  to  destroy  their  jurisdiction,  therefore, 
it  is  necessary  to  show,  not  that  the  United  States  have  given 
them  jurisdiction,  but  that  Congress  possesses,  and  have  ex- 
orcised the  power  of  taking  away  that  jurisdiction  which  the 
States  have  vested  in  their  own  Judges."  Southard,  J.,  in 
■State  v.  Brearly,  2  South.  555, (1819,) says:  "It  will  require 
in  mfca  great  struggle,  both  of  feeling  and  judgment,  before 
I  shall  be  prepared  to  deny  the  jurisdiction  of  the  State,  and 
say  that  she  has  surrendered  her  independence  on  questions 
like  this,  and  that  her  highest  judicial  tribunal,  for  such  pur- 
poses, is  incapable  of  inquiring  into  the  imprisonment  of  her 
citizens,  no  matter  how  gross  or  illegal  it  may  be,  provided  it 
be  by  the  agents  of  the  United  States,  and  under  eolor  of 
their  laws."  "Have  we  lost  the  jurisdiction  because  we  cannot 
construe  and  determine  the  extent  and  operation  of  acts  of 
Congress?  We  are  often  compelled  to  construe  them;  they 
are  our  supreme  law,  when  made  in  conformity  with  the  con- 
stitution. Is  it  because  the  United  States  is  a  party!  How 
does  she  become  a  party  on  such  a  question  ?  Is  she  a  party 
for  the  purpose  of  despotism,  whenever  a  man  who  holds  a 
commission  from  her,  shall,  without  legal  authority,;  or  in  vio- 
lation of  her  own  statutes  injure,  imprison  or  oppress  the  citi- 
zen? surely  not."  In  Sloeimib  v.  Mayherry, 2d  Wheat,  p.  1, 
(1817,)  Sloeumb  was  surveyor  for  the  port  of  Newport  in  Rhode 
Island,  and  under  the  directions  of  the  collector  had  seized 
the  "Yenus,"  lying  in  that  port  with  a  cargo,  ostensibly 
bound  to  .some  other  port  in  the  United  States.  Mayberry, 
who  was  the  owner  of  the  cargo,  brought  an  action  of  replev- 
in in  the  State  court  for  the  restoration  of  the  cargo.  Sloeumb 
put  his  defence  on  the  ground  that  he  was  an  officer  of  the 


m  IN  THE  SUPKEME  COURT, 

In  the  matter  of  Bryan. 

United  States,  and  the  seizure  of  ,the  vessel  and  cargo  was 
authorized  by  an  act  of  Congress,  and  denied  the  jurisdiction 
of  the  State  court.  The  court  took  jurisdiction,  and  decided 
in  favor  of  Mayberry,  on  the  ground  that  the  act  of  Congress, 
by  its  proper  construction,  only  authorized  the  seizure  and 
detention  of  the  vessel,  and  did  not  embrace  the  cargo ;  con- 
sequently the  officer  had  detained  the  cargo  against  law. 
Slocunib  carried  the  ease  to  the  Supreme  Court  of  the  United 
States,  where  it  was  held  that  the  State  court  had  jurisdiction, 
and  had  put  a  proper  construction  on  the  act  of  Congress. 
Marshall,  C.  J.,  says ;  "  Had  this  action  been  brought  for 
the  vsssel,  instead  of  the  cargo,  the  case  would  have  been  es- 
sentially different,  the  detention  would  have  been  by  virtue 
of  an  act  of  Congress,  and  the  jurisdiction  of  a  State  court 
could  not  have  been  sustained  ;  but  the  action  being  brought 
for  the  cargo,  to  detain  which  the  law  gave  no  authority,  it 
was  triable  in  the  State  court."  I  cite  this  case,  particularly, 
because  in  the  action  of  replevin,  the  thing  is  taken  out  of  the 
possession  of  the  officer,  as  the  person  is  taken  out  of  the  pos- 
session of  the  officer  under  a  writ  of  habeas  corpus',  so,  it  is< 
directly  in  point  to  show  that  a  State  court  has  jurisdiction 
wherever  the  law  gives  no  authority  to  detain  the  person  or 
the  thing;  and,  in  order  to  decide  that  question,  the  State 
court  has  power  to  put  a  construction  on  the  act  of  Congress 
under  which  the  officer  justifies  the  imprisonment  or  deten- 
tion. 

To  oppose  this  array  of  authorities  and  reason,  Mr.  Strong  re- 
lies on  two  cases:  Ableman  v.  Booth,  21  How.  506,  and  "H.UV& 
case,"  recently  decided  by  the  Supreme  Court  of  the  State  of 
Alabama.  With  the  decision  in  Ableman  v.  Booth,  21  How- 
ard 506,  we  entirely  concur,  and  agree  with  Taney,  C.  J.,  that 
it  is  "a  new  and  unprecedented  attempt,  made  for  the  first  time, 
by  a  State  court,"  to  assume,  not  merely  an  exclusive  jurisdic- 
tion, but  a  jurisdiction  controlling  the  District  Court  of  the 
United  States.  This  decision  of  the  Supreme  Court  of  the 
United  States,  in  no  wise  impugns  the  concurrent  jurisdiction 
of  the  State  courts,  which  has  been  settled  by  the  authorities 


JUNE  TERM,  1863.  23 

In  the  matter  of  Bryan. 

and  reasoning  to  which  we  have  referred.  Two  cases  were 
presented.  Booth  was  arrested  raider  a  warrant  of  the  Com- 
missioner appointed  in  pursuance  to  an  act  of  Congress  in  re- 
spect to  fugitive  slaves,  under  a  charge  of  having  aided  in  the 
rescue  of  a  fugitive  slave ;  and  upon  examination  before  the 
commissioner,  probable  cause  being  shown,  he  was  commit- 
ted to  answer  a  charge  of  the  United  States  for  a  misde- 
meanor, before  the  District  Court,  in  the  State  of  Wisconsin ; 
he  gave  bail  for  his  appearance,  but  was  afterwards  surrend- 
ered by  his  bail,  and  imprisoned  by  the  marshal ;  whereup- 
on he  obtained  a  writ  of  habeas  corpus  from  a  judge  of  the 
State  and  was  discharged.  After  being  discharged,  the 
grand  jury  found  a  bill  of  indictment  against  him  in  the  Dis- 
trict Court,  upon  which  he  M^as  tried  and  convicted  and  sen- 
tenced to  pay  a  fine  and  be  imprisoned.  While  in  prison, 
under  sentence,  he  obtained  a  writ  of  habeas  corpus  from  the 
Supreme  Court  of  the  State,  and  was  discharged  ;  whereupon 
the  Supreme  Court  of  the  United  States  had  the  matter 
brought  before  it  on  a  writ  of  error,  and  decided  that  as 
Booth,  in  the  first  case,  was  legally  in  custody  of  the  marshal 
on  a  warrant  of  commitment  to  answer  a  charge  for  an  in- 
dictable offence  before  the  District  Court,  and  in  the  second 
ease,  was  in  jail  under  the  sentence  of  the  District  Court,  the 
State  court  had  no  jurisdiction  by  habeas  corpus,  to  take  him 
out  of  the  custody  of  the  marshal,  or  out  of  jail  and 
discharge  him.  This  was  the  decision  in  the  case,  and 
if  the  language  used  by  the  Chief  Justice,  in  delivering 
the  opinion,  is  construed  in  reference  to  the  facts  of  the  case 
before  the  court,  there  is  nothing  either  in  the  decision  or  the 
opinion,  which  denies  the  concurrent  jurisdiction  of  the  State 
courts.  It  is  true  the  language  is  susceptible  of  a  wider 
meaning,  and  may  afford  room  for  an  inference  that  the  learn- 
ed Chief  Justice  "  goes  outside  of  the  record,"  and  expresses  an 
opinion  against  the  jurisdiction  of  the  State  courts  in  all  ca- 
ses where  one  is  restrained  of  his  liberty  by  an  officer  or  agent 
of  the  government  of  the  United  States,  although  the  impris- 
onment be  unlawful,  and  is  not  authorized  by  the  act  of  Con- 


24-  IN  THE  SUPREME  COURT. 

^  In  the  matter  of  Bryan. 

gress  under  which  the  officer  professes  to  act;  tjut,  in  our  opin- 
ion, such  an  inference  will  do  great  injustice  to  that  able  ju- 
rist; he  surely  could  not  have  intended  to  put  "his  obiter  dic- 
tum" in  opposition  to  the  series  of  authorities  above  referred 
to,  without  making  any  allusion  or  reference  to  them,  or  any 
attempt  to  controvert  the  reasoning  upon  which  they  rest. — 
However  this 'may  be,  the  decision  does  not  conflict  with  the 
concurrent  jurisdiction  of  the  State  Corals,  and  the  obiter  dic- 
tum, if  it  be  one,  is  not  entitled  to  the  weight  of  an  authori- 
ty, and  must  be  treated  simply  as  the  opinion  of  an  able  law- 
yer on  a  question  not  presented  by  the  facts  before  the  Court, 
and  entitled  only  to  that  degree  of  ^consideration  which  its 
intrinsic  merit  will  command. 

The  same  remarks  are  applicable  to  the  case  of  Hill  and 
■others,  recently  decided  by  the  Supreme  Court  of  Alabama. 
The  petitioners  claimed  to  be  entitled  to  exemption  by  reason 
■of  bodily  incapacity,  but  had  not  been  held  unfit  for  military 
service  in  the  field  by  a  surgeon,  under  the  rule  prescribed 
by  the  Secretary  of  War,  We  fully  concur  in  the  decision 
•of  the  case  before  the  Court;  indeed,  during  the  last  Spring, 
I  refused  the  application  of  two  persons  who  claimed  exemp- 
tions on  the  ground  of  being  "unfit  for  military  service  in  the 
field  by  reason  of  bodily  incapacity,"  because  by  the  proper 
construction  of  the  exemption  act,  only  those  persons  are  ex- 
■empted,  who  shall  be  held  "unfit  for  military  service  in  the 
field,  by  reason  of  bodily  incapacity  under  rules  to  be  pre- 
scribed by  the  Secretary  of  War;"  and,  according  to  these 
rules,  it  was  necessary  that  the  party  should  be  examined  by  a 
surgeon,  or  board  of  surgeons  appointed  for  that  purpose,  and 
the  certificate  of  the  surgeon  or  board  of  surgeons,  was  the 
only  evidence  of  bodily  incapacity  that  could  be  acted  on  as 
evidence  of  the  fact ;  so,  in  that  case,  the  parties  were  not 
unlawfully  restrained  of  their  liberty,  but  were  lawfully  in 
custody  of  the  officer  of  the  Confederate  States,  under  the  au- 
thority of  the  acts  of  Congress,  according  to  their  proper  con- 
struction. Consequently,  that  decision  is  not  opposed  to  the 
jurisdiction  of  the  State  courts,  when  by  the  proper  construe- 


JUNE  TEEM,  1863.  25 

In  the  matter  of  Bryan. 

tioil  of  the  acts  of  Congress,  one  who  is  not  liable  to  conscrip- 
tion, or  who  is  exempt,  is  restrained  of  his  liberty  against  law. 
That  portion  of  the  opinion,  and  reasoning  of  the  learned 
Chief  Justice,  which  is  not  applicable  tovthe  case,  made  by 
the  facts  before  the  Court,  has  received  from  us  due  conside- 
ration. 

On  the  argument,  this  position  was  taken  :  Congress 
may  authorize  the  President  to  suspend  the  writ  of  ha- 
beas corpus:  this  would  not  appl}7  to  the  State  tribunals,  and 
if  the  State  courts  and  Judges  have  power  to  issue  the  writ 
when  a  person  is  imprisoned  by  an  officer  of  the  Confederate 
State,  the  suspension  of  the  writ,  so  far  as  the  tribunals  of  the 
Confederate  States  are  concerned,  would  be  vain  and  nugato- 
ry. This  reply  answers  the  position :  The  act  of  Congress 
would  specify  the  cases  in  which  the  writ  might  be  suspend- 
ed, or  would,  in  general  terms,  authorize  the  President  to  sus- 
pend it  in  all  cases  where  a  person  shall  be  imprisoned  by  or- 
der of  the  President.  And,  as  the  acts  of  Congress  made  in 
pursuance  of  the  constitution,  are  the  supreme  law  of  the 
land,  it  follows  that  such  an  act  would  be  as  imperative  on 
the  State  courts  and  Judges,  as  on  the  tribunals  of  the  Con- 
federate States. 

This  position  was  also  taken  :  It  is  admitted  that  should  a 
judicial  tribunal  of  the  Confederate  States,  by  its  construction 
of  an  act  of  Congress,  subject  a  citizen  to  imprisonment  wrong- 
fully, the  State  courts,  having  only  concurrent  jurisdiction, 
could  not  interfere  to  prevent  the  oppression  ;  and,  on  what 
ground  can  they  have  any  more  power  to  prevent  oppression 
on  the  part  of  the  Executive  (if  we  ma}7  suppose  such  a 
case)  than  to  prevent  oppression  on  the  part  of  the  Con- 
federate judiciary?  This  reply,  we  think,  is  a  conclusive 
answer:  The  judicial  tribunals  of  the  Confederate  States 
have  jurisdiction,  consequently,  any  adjudication  of  those 
tribunals  would  fix  the  construction  of  the  act  of  Con- 
gress, and  the  State  courts  could  "not  review  or  reverse  its 
decision;  whereas,  the  executive  branch  of  the  government 
lias  no  judicial  power,  and  any  construction  it  might  give 


26  IN  THE  SUPKEME  COUET. 

In  the  matter  of  Bryan. 

to  an  act  of  Congress  would  be  the  subject  of  review, 
either  by  the  State  courts  or  the  Confederate  courts ;  and 
when  a  citizen  is  unlawfully  deprived  of  his  liberty  or  proper- 
ty by  an  executive  officer,  acting  under  an  erroneous  construc- 
tion of  an  act  of  Congress,  the  State  courts  may  give  redress, 
as  in  Slocumb  v.  Mayberry.  sup. 

This  further  position  was  taken,  and  seemed  to  be  mainly 
relied  on  :  By  the  conscription  and  exemption  acts,  Congress 
invests  the  Secretary  of  War,  and  the  officers  he  is  authorized 
to  appoint  in  order  to  carry  them  into  effect,  with  a  quasi  ju- 
dicial power,  by  which  the  enrolling  officers  have  jurisdiction 
to  "  hear  and  determine  "  all  questions  which,  are  necessary 
to  be  decided  in  order  to  ascertain  whether  a  person  is  liable 
to  conscription,  or  is  entitled  to  exemption,  which  of  course 
includes  the  power  to  put  a  construction  on  the  acts  of  Con- 
gress. From  the  decision  of  the  enrolling  officer,  there  is  an 
appeal  to  the  commandant  of  conscripts,  and  from  his  decision, 
there  is  an  appeal  to  the  Secretary  of  "War,  and  possibly  there  is 
an  appeal  to  the  President.  This  grant  of  judicial  power  is  de- 
duced from  the  several  clauses  in  the  acts  of  Congress,  by  which 
the  Secretary  of  War  is  authorized  "to  make  rules  and  regu- 
lations to  carry  the  acts  into  effect,"  and  from  the  nature  of- 
the  subject,  because  without  exercising  judicial  power,  it  would 
be  impracticable  to  execute  the  conscription  acts.  This  posi- 
tion is  not  tenable.  There  are  three  conclusive  objections  to 
it :  1st,  Congress  has  no  power  to  make  the  Secretary  of  War 
a  Judge  ;  or  to  authorize  him  to  invest  his  subordinate  offi- 
cers with  judicial  power,  for,  as  I  say  in  the  opinion  delivered 
by  me,  in  the  matter  of  Meroney :  "  It  is  true,  for  the  pur- 
pose of  carrying  acts  of  Congress  into  effect,  the  Secretary  of 
"Vf  ar,  in  the  first  place,  puts  a  construction  on  them,  but  his 
construction  must  be  subject  to  the  decision  of  the  judiciary, 
otherwise,  our  form  of  government  is  subverted,  the  constitu- 
tional provision  b}7  which  the  legislative,  executive  and  judi- 
cial departments  of  the  government  are  separate  and  dis- 
tinct, is  violated,  and  there  is  no  check  or  control  over  the 
executive."    The  circumstances  growing  out  of  the  subject, 


JUNE  TERM,  1863.  27 


In  the  matter  of  Bryan. 

now  under  consideration,  demonstrate  the  wisdom  of  the  fra- 
mers  of  the  constitution  in  adopting  the  principle  by  which 
Congress  has  no  authority  to  exercise  judicial  power  or  to 
confer  judicial  power  upon  a  department  of  the  executive 
branch  of  the  government.  The  military  officers  appointed 
to  execute  the  conscription  acts  are  naturally  prompted  to 
increase  the  numerical  force  of  the  army,,  and  for  this  pur- 
pose so  to  construe  the  acts  as  to  embrace  as  many  persons  as 
possible.  For  this  reason,  and  as  a  protection  to  those  citi- 
zens who  are  not  embraced  by  the  conscription  acts,  the  con- 
stitution provides  a  third  branch  of  the  government  in  which 
is  confided  the  trust  of  expounding  the  law  and  putting  a  con- 
struction upon  the  acts  of  Congress,  and  it  follows  that  Con- 
gress has  no  power  to  ignore  the  existence  of  this  third  branch 
of  the  government  and  confer  on  the  executive,  powers  which 
belong  to  the  judiciary. 

2d.  There  is  no  apparent  intention  of  Congress  to  confer 
judicial  power  on  the  Secretary  of  War,  and  authorize  him 
to  establish  inferior  and  superior  courts  with  the  right  of  ap- 
peal to  himself.  If  such  had  really  been  the  intention,  it 
would  have  been  expressed  in  plain  and  direct  terms,  and.  the 
simple  fact  that  the  Secretary  of  War  is  authorized  "  to  pre- 
scribe rules  and  regulations  to  carry  the  acts  of  Congress  into 
effect,"  which  power  he  would  have  had  almost  by  necessary 
implication,  surely  cannot,  when  considered  calmly  and  unin- 
fluenced by  collateral  disturbing  causes,  be  considered  suffi- 
cient to  confer  a  power  on  the  Secretary  of  War  totally  at 
variance  with  every  principle  of  our  government. 

3d.  If  the  Secretary  of  War  and  his  subordinate  officers  are 
invested  with  this  judicial  power,  so  as  to  exclude  the  juris- 
diction of  the  State  courts,  for  the  very  same  reason  it  would 
exclude  the  jurisdiction  of  the  courts  and  Judges  of  the  Con- 
federate States.  No  provision  is  made  by  which  a  case  can 
be  taken  for  review  before  the  District  Court  of  the  Confede- 
rate States  from  these  military  judicial  tribunals.  Consequent- 
ly, the  judicial  department  of  the  government,  both  State  and 
Confederate,  is  set  aside  and  the  liberty  of  the  citizen  depends 


28  IN  THE  SUPREME  COU±iT. 

In  the  matter  of  Bryan. 

solely  on  the  action  of  the  war  department  and  its  subordi- 
nate officers.     Can  this  be  so  ?     Surely  not. 

Our  conclusion  is,  that  the  Court  has  jurisdiction  to  dis- 
charge a  citizen  by  the  writ  of  habeas,  corpus,  whenever  it  is 
made, to  appear  that  he  is  unlawfully  restrained  of  his  liberty 
by  an  officer  of  the  Confederate  States;  and  that  when  a  case 
is  made  out,  the  Court  is  bound  to  exercise  the  jurisdiction 
which  has  been  coufided  to  it  "  as  a  sacred  trusty  and  has  no 
discretion  and  no  right  to  be  influenced  by  considerations 
growing  out  of  the  condition  of  our  country,  but  must  act 
with  a  single  eye  to  the  due  administration  of  the  law,  accord- 
ing to  the  proper  construction  of  the  acts  of  Congress. 

Battle,  J.  The  question  presented  for  the  consideration  of 
the  Court  is,  whether  the  courts  and  Judges,  of  this  State  have  the 
right  to  issue  writs  of  habeas  corpus  for  the  purpose  of  inqiring 
into  the  legality  of  the  detention  of  persons  held  in  custody, 
bj  officers  of  the  Confederate  States  as  conscripts,  under  cer- 
tain acts  of  the  Confederate  Congress.  The  constitutionality  of 
those  acts  has  never  been  judicially  questioned  in  this  State,  so 
that  the  only  inquiry  is  that  which  I  have  just  stated.  My  opin- 
ion is  decidedly  in  favor  of  the  jurisdiction  of  the  State  courts, 
and  I  will  endeavor  to  state,  briefly,  the  process  of  reasoning, 
by  which  I  have  been  conducted  to  this  conclusion.  In  the  ex- 
position of  my  argument,  it  will  be  more  convenient  for  me 
to  show  what  wereihe  power  and  authoritjr  of  the  courts  of 
this  State  in  relation  to  this  matter,  while  it  was  a  member  of 
'the  United  States  government;  for  no  one  contends  that  they 
have  less  power  and  authority  under  the  Confederate  govern- 
ment. 

After  the  American  Revolution,  North  Carolina  was  a  sov- 
ereign and  independent  State.  In  virtue  of  that  sovereignty 
and  independence,  she  was  invested  with  many  and  great 
powers  and  prerogatives,  and  had  imposed  upon  her  many 
and  important  duties.  Among  these  duties  none  was  higher 
than  that  of  protecting  all  her  citizens  in  the  full  and  free  en- 
joyment of  life,  liberty  and  private  property.     Fully  alive  to 


JUNE  TERM,  1863.  20 

In  the  matter  of  Bryan. 

this  duty,  she,  in  the  fundamental  organization  of  her  govern- 
ment, declared  '-that  no  freeman  ought  to  be  taken,  impris- 
oned or  deprived  of  his  freehold,  liberties  or  privileges,  or 
outlawed,  or  exiled,  or  in  any  manner  destroyed  or  deprived 
of  hjs  life,  liberty  or  property,  but  by  the  law  of  the  land." 
Declaration  of  Eights,  sec.  12.  And  again  :  "That  every 
freeman,  restrained  of  his  liberty,  is  entitled  to  a  remedy  to- 
inquire  into  the  la>vfuluess  thereof,  and  to  remove  the  same, 
if  unlawful,  and  that  such  remedy  ought  not  to  be  denied  or 
delayed."  Ibid,  sec.  13.  !<  To  give  a  practical  effect  to  these 
rights,  courts  were  established  and  Judges  appointed.  Had 
the  State  been  powerful  enough  to  continue  to  exist  as  an  in- 
dependent nation,  nothing  more  would  have  been  wanted  to 
secure  the  protection  of  her  citizens.  But,  North  Carolina, 
for  causes  not  now  necessary  to  be  set  forth,  found  it  expedi- 
ent to  unite  with  other  States  similarly  situated,  for  the 
purpose  of  forming  a  new  and  distinct  government,  and  in 
doing  so,  all  these  States  were  compelled  to  give  up  a  portion 
of  their  former  respective  sovereignties,  and  to  invest  the- 
newly  created  government  with  them.  'Hence,,  the  adoption 
of  the  constitution  of  the  United  States,  in  which,  after  the 
enumeration  of  all  the  powers  conferred  on  the  General  Gov- 
ernment, it  is-  declared,  that  "the  powers  not  delegated  to  the- 
United  States  by  the  constitution,  nor  prohibited  by  it  to  the 
States,  are  reserved  to  the  States  respectively,  or  to  the  peo- 
ple." See  amend'ts  to  Con.  art.  10.  This  article  was  indeed 
unnecessary,  as  the  General  Government  had  no  powers  ex- 
cept what  the  States  had  granted  to  it,  either  expressly  or  by 
a  necessary  implication  ;  but  it  w?as,  out  of  abundant  caution,, 
very  properly  adopted. 

We  are  now  to  inquire  whether  the  State  gave  up  a,\4tf  por- 
tion of  that  sovereignty,  which  wasmecessary  to  be  retained  for 
the  purpose  of  enabling  her  to  discharge  the  duty  of  protect- 
ing the  personal  liberty  of  her  citizens. 

As  the  courts  and  Judges  furnish  the  means  through  which 
that  liberty  is  to  be  vindicated,  let  us  see  what  authority  or 
power  has  been  taken  from  them.     Alexander  Hamilton,  a 


UST  THE  SUPREME  COURT. 


In  the  matter  of  Bryan. 


member  of  the  convention  which  formed  the  constitution  of 
the  General  Government,  and  one  of  its  ablest  expounders, 
declared  in  the  82d  No.  of  the  Federalist,  p.  377:  "That  the 
States  'will  retain  all  pre-existent  authorities,  which  may  not 
be  exclusively  delegated  to  the  Federal  head ;  and  that  this 
exclusive  delegation  can  only  exist  in  one  of  three  cases: 
where  an  exclusive  authority  is,  in  express  terms,  granted  to  the 
Union  ;  or  where  a  particular  authority  is  granted  to  the  Union, 
and  the  exercise  of  a  like  authority  is  prohibited  to  the  States ; 
or  where  an  authority  is  granted  to  the  Union,  with  which  a 
similar  authority  in  the  States  would  be  utterly  incompatible. 
Though  these  principles  may  not  apply  with  the  same  force 
to  the  judiciary  as  to  the  legislative  power,  yet  I  am  inclined 
to  think  that  they  are,  in  the  main,  just  with  respect  to  the 
former  as  well  as  with  the  latter.  And,  under  this  impres- 
sion, I  shall  lay  it  down  as  a  rule,  that  the  State. courts  will 
retain  the  jurisdiction  they  now  have,  unless  it  appears  to  be 
taken  away  in  one  of  the  enumerated  modes."  Chancellor 
Kent,  in  the  1st  voL  of  his  Com.  p.  896,  in  remarking  upon 
the  rule  as  thus  stated  in  the  Federalist,  says :  "A  concur- 
rent jurisdiction  in  the  State  courts  was  admitted  in  all  ex- 
cept those  enumerated  cases ;  but  this  doctrine  was  only  ap- 
plicable to  those  descriptions  of  causes  of  which  the  State 
courts  had  previous  cognizance,  and  it  was  equally  evident  in 
relation  to  causes  which  grew  out  of  the  constitution.  Con- 
gress, in  the  course  of  legislation,  might  commit  the  decsion 
of  causes  arising  upon  their  laws  to  the  Federal  courts  exclu- 
sively ;  but,  unless  the  State  courts  were  expressly  excluded, 
by  the  acts  of  Congress,  they  would  of  course,  take  concur- 
rent cognizance  of  the  causes  to  which  these  acts  might  give 
birth$  subject  to  the  exceptions  which  have  been  stated.'--— • 
Among  the  causes,  of  which  the  State  courts  had  previous 
cognizance,  none  were  more  importa»t  than  those  in  which 
they  claimed  the  right  to  inquire,  through  the  means  of  writs 
of  habeas  corpus,  into  the  reasons  for  the  imprisonment  of 
persons  alleged  to  be  illegally  restrained  of  their  liberty.  A 
.jurisdiction  so  essential  to  the  great  privilege  of  going  where 


JUNE  TEEM,  1863.  31 


In  the  matter  of  Bryan. 


one  may  please — a  privilege  which  every  citizen  of  the  State 
would  wish  to  enjo\r  as  freely  as  he  did  the  air  he  breathed — 
the  State  courts  would  hardly  have  parted  with,  except  upon 
the  most  urgent  necessity.  As  soon,  then,  as  a  citizen  of  the 
State  was  supposed  to  be  illegally  restrained  of  his  liberty  by 
an  officer  of  the  General  Government,  under  color  of  a  law  of 
Congress,  we  might  have  expected  that  the  State  courts  would 
promptly  and  anxiously  inquire  whether  they  had  been  de- 
prived of  their  jurisdiction  over  the  matter.  They  would  ask, 
had  it  been  taken  away  by  an  exclusive  authority,  granted  in 
express  terms  to  the  courts  of  the  Union? 

If,  for  instance,  it  were  the  case  of  a  soldier  unlawfully  en- 
listed into  the  army,  the  answer  would  be  in  the  negative. 
They  would  then  ask  :  was  it  a  case  where  a  particular  au- 
thority was  granted  to  the  courts  of  the  Union,  and  the  exer- 
cise of  a  like  authority  prohibited  to  the  courts  of  the  States? 
The  answer  would  be  still  in  the  negative.  They  would  then 
ask:  was  it  a  case  where  an  authority  was  granted  to  the 
courts  of  the  Union,  with  which  a  similar  authority  in  the 
courts  of  the  States  would  be  utterly  incompatible  ?  That  was 
considered  to  be  a  debateable  question,  and  it  was  debated , 
with  great  zeal  and  ability  in  almost  every  State  of  the  Union 
for  many  years.  The  result  was  in  favor  of  the  jurisdiction 
of  the  State  courts,  and  was  thus  announced  by  Chancellor 
Kent  in  the  1st  Ed.  of  his  Commentaries,  and  was  so  publish- 
ed in  each  successive  edition  of  his  work  until  his  death.  (See 
1  Kent's  Com.  400-401.) 

"  In  the  case  of  Ferguson,  (9  Johns.  Rep.  239,)  an  applica- 
tion was  made  to  the  Supreme  Court  Of  ISfew  York,  for  an  al- 
lowance of  a  habeas  corpus  to  bring  up  the  party  alleged  to 
be  detained  in  custody  by  an  officer  of  the  army  of  the  Uni- 
ted States,  on  the  ground  of  being  an  enlisted  soldier ;  and 
the  allegation  was  that  he  was  an  infant  and  riot  duly  enlist- 
ed. It  was  much  discussed,  whether  the  State  courts  had 
concurrent  jurisdiction  by  habeas  corpus^  over  the  question  of 
unlawful  imprisonment,  when  that  imprisonment  was  by  an 
officer  of  the  United  States,  by  color  or  under  pretext  of  au- 


32  IN  THE  SUPREME  COURT. 

'    ,  In  the  matter  of  Bryan. 

thority  of  the  United  States.  The  Supreme  Court  did  not  de- 
cide the  question,  and  the  motion  was  denied  on  other  grounds,, 
but  subsequently  in  the  matter  of  Stacy,  (10  Johns.  328,)  the 
same  Court  exercised  jurisdiction  in  a  similar  case,  by  allow- 
ing and  enforcing  obedience  to  the  writ  of  habeas  corpus. 
The  question  was,  therefore^  settled  in  favor  of  a  concurrent 
jurisdiction  in  that  case,  and  there  has- been  a  similar  deci- 
sion and  practice  by  the  courts  of  other  States."  See  also 
Hurd  on  Habeas  Corpus,  Book  2,  chap.  1,  sec.  5,  where  many 
cases  are  stated,  which  show  the  correctness  of  Chancellor 
Kent's  assertion. 

To  the  cases  mentioned  by  Hurd  may  be  added  that  of 
Mason,  decided  in  this  State,  and  reported  1  Murph  336. 
The  question  of  the  compatibility  of  the  jurisdiction  of  the 
State  courts  with  that  of  the  courts  of  the  United  States,  seems 
thus  to  have  been  proved  conclusively  by  long  experience  of 
their  harmonious  action,  and  the  general  acquiescence  of  the 
country  in  it. 

But  it;  has  been  recently  said  that  this  is  all  a  mistake,  and 
that  the, decision  of  the  Supreme  Court  of  the  United  States 
in  the  case  of  Ablemcm  v.  Booth,  21  How.  506,  is  directly 
opposed  to  the  supposition  of  a  concurrent  jurisdiction  in  the 
courts  of  the  State  with  those'  of  the  Federal  government. 
With  the  decision  of  that  case  I  entirely  concur;  and  I  think 
hat  it  is  clearly  shown  in  the  opinion  of  the  Chief  Justice  of 
his  Court,  filed  in  this,  case,  that  the  remarks  of  Ch.  Justice 
Taney,  in  giving  the  opinion  of  the  Supreme  Court  of  the 
United  States,  cannot  fairly  be  construed  to  sustain  the  doc- 
trine contended  for  by  the  supporters  of  the  exclusive  juris- 
diction of  the  federal  courts. 

Another  case  recently  decided  by,  the  Supreme  Court  of 
Alabama  has  also  been  invoked  to  the  aid  of  those  who  op- 
pose the  concurrent  jurisdiction  of  the  State  courts.  The  case 
is  that  of  Ex  parte  Hill,  decided  at  the  last  January  term  of 
the  Court,  and  reported  and  published  in  pamphlet  form  by 
Mr.  Shepherd,  the  reporter  of  the  Court,  An  attentive  ex- 
amination of  the  case  will  show,  that  though  the  decision  of 


JUNE  TEEM,  1863.  3£ 

In  the  matter  of  Bryan. 

the  Court  is  right,  it  cannot  be  used  as  an  authority  for  the 
purpose  for  which  it  has  been  cited.  I  will  premise  that  the 
Court  is  composed  of  three  Judges,  of  whom  only  the  Chief 
Justice,  A.  J.  Walker,  and  Stone,  Judge,  were  present,  the 
other  Judge,  E.  W.  Walker,  being  detained  at  home  by  pro- 
vidential causes.  The  Court  agreed,  in, the  conclusion  that  the 
Judge,  whose  action  they  were  reviewing,  should  not  issue 
the  writ  of  habeas  cordis  upon  the  petition  before  him.  The 
Chief  Justice  put  his  opinion  upon,  the  ground  of  a  want  of. 
jurisdiction  in  the  courts  of  the  State,  but  J,udge  Stone  ex- 
pressly said,  "  I  withhold  the  expression.'  of  any  opinion,  on  all 
those  cases,  in  which  the  party,  either  by  name,,  or  as  one  of 
a  class  or  sect,  stands,  absolutely  and  unconditionally,  exempt 
from  conscription,  without  any  other  qualification;  than  that, 
he  is  of  the  given,  class;  such,,  for  example,  as  persons,  under 
the  age  of  eighteen  years  or  over  forty-five,  officers  judicial 
and  executive  of  the  Confederate  and  State  Government,  &c." 
The  Judge  then  went  on  with  his  argument  to  show  that  the 
petitioner  in  the  case  before  the  Court  was  not  exempt  from 
conscription  under  the  law  of  Congress.  In  doing  so.  it  seems 
to  me,  he,  himself,  as  a  member  of  the  Court,  was  assuming 
a  jurisdiction  of  the  case.  If  he  had  the  right  to  construe  the 
act  of  Congress  for  the  purpose  of  ascertaining  that  the  party 
was  not  entitled  to  exemption,  he  had.  the  same  right  to  con- 
strue the- act,  if  his  construction  led.  to  the  conclusion,  that  the 
party  was  exempt.  A  power  to,  construe  the  act  at  all,  in- 
volves, necessarily,  a  jurisdiction  in.  the  Court..  If  this  be  so,, 
then  the  Court  was  equally  divided;  upon  the  question  of  ju- 
risdiction, and,  therefore,  there  was  no  decision  either  way 
upon  that  question. 

Another  case  reported  in  the  same  pamphlet,  and,,!  sup-r- 
pose,  decided  at  the  same  term,  shows  manifestly  that  the 
Court  assumed  and  exercised  jurisdiction  over  the  cause.  The 
case  is  that  of  Ex  parte  Stringer.  The  party  being  in  custo- 
dy as  a  conscript,  applied  for  a  writ  of  habeas  corpus  upon  the 
ground,  that  he  was  a  regular  member  of  the  "Christian 
Church,"  and  had  conscientious  scruples  against  bearing  arms. 

3 


34:  IN  THE  SUPREME  COURT. 

In  the  matter  of  Bryaii. 

Stone,  Judge,  delivered  the  opinion  of  the  Court,  in  which  it 
was  decided  that  the  acts  of  Congress,  known  as  the  "  Con- 
scription laws,"  were  constitutional;  and  that  the  petitioner  did 
not  come  within  any  of  the  exemption  clauses  of  those  laws. 
The  opinion  closes  thus  :  "  As  the  opinion  of  the  entire  Court 
is  not  yet  announced,  nor  indeed  formed,  on  the  broad 
question  of  the  jurisdiction  of  the  State  courts  in  cases  like 
the  present,  and  as  we  feel  no  hesitation  in  refusing  the  pre- 
sent application  on  the  merits,  we  place  our  refusal  on  the 
ground  stated  above.     The  prayer  of  the  petitioner  is  denied." 

If  the  Court  had  no  jurisdiction  of  the  cause,  I  should  like 
to  know  how  it  acquired  the  power  to  decide  the  case  upon 
its  merits  ?  From  this  examination,  it  is  manifest,  I  think, 
that  neither  the  Alabama  case,  nor  that  of  Ableman  v.  Booth, 
has  lessened,  in  any  sensible  degree,  the  weight  of  authority  in 
favor  of  the  concurrent  jurisdiction  of  the  State  courts  in  cases 
like  that  now  under  consideration. 

In  closing  this  opinion,  I  will  take  occasion  to  return  my 
thanks  to  the  counsel  on  both  sides,  for  the  aid  which  they 
have  given  to  the  Court  by  their  able  and  well  considered 
arguments. 


Afterwards,  the  Court  invited  an  argument  from  the  bar 
upon  this  question:  whether  this  Court,  as  such,  had  the  pow- 
er to  issue  a  writ  of  habeas  corpus,  and  to  determine  of  the 
case  in  open  court. 

Mr.  Moore,  argued  in  favor  of. the  jurisdiction  as  follows  : 

There  has  been  no  time  since  the  organization  of  Govern- 
ment in  the  State,  1666-7,  when  this  writ,  so  precious  to  free- 
men, did  not  run  among  us. 

1.  The  second  charter  of  Charles  2nd,  (1667,)  (2  R.  S.  4,) 
granted  to  the  "  Proprietors"  the  power  "  by  Judges  to  award 
process,  hold  pleas,  and  determine  all  actions,  suits  and  caus- 
es whatsover,  as  well  criminal  as  civil,  real,  mixt,  personal, 
or  of  any  other,  kind  or  nature  whatsoever."  The  courts  of 
England  did  issue  writs  of  habeas  corpus  before  31  Ch.  2,  and 
perhaps  the  Judges  in  vacation,  Bac.  Abr.  Hab.  Corp,  B.  13. 


JUKE  TEEM,  1863.  35 


In  the  matter  of  Bryan. 


2.  Though  this  statute  (passed  in  1679)  did  not  extend  to 
the  Colonies,  the  Colonial  Legislature  of  1715  ("Rev.  Code  of 
1820,  c.  5,  s.  3)  declared  in  force  in  the  colony  all  laws  of 
England  "  providing  for  the  privileges  of  the  people."  See 
Ired.  Eev.  p.  17,  ch.  31.  This  emphatically  introduced  the 
act  of  31st  Charles,  and  thenceforth  it  is  clear,  that  both 
courts,  and  Judges  in  vacation  conld  issue  the  writ. 

3.  In  December,  1776,  the  Convention  which  framed  the 
State  Constitution  declared,  among  the  rights  of  the  people, 
"  that  every  freeman  restrained  of  his  liberty,  is  entitled  to  a 
remedy  to  enquire  into  the  lawfulness'  thereof,  and  to  remove 
the  same,  if  unlawful,  and  that  such  remedy  ought  not  to  be 
delayed."  Decl'n  Rights,  sec.  13.  This  language  alone,  would 
have  given  birth  to  the  writ,  if  before  that  time  it  had  been 
unknown.  It  is,  however,  nothing  more  than  a  declaration 
of  the  unremitting  force  of  the  then  well  known  great  writ  of 
personal  liberty,  and  a  prohibition  against  its  suspension. 
The  language,  so  far  as  concerns  the  remedy,  is  addressed  to 
the  judicial  authorities  of  the  State. 

4.  In  April,  1777,  the  act  (E.  C.  of  1820,  ch.  115,  sec.  2,) 
called  the  "  court  law,"  was  exacted  (or  rather  the  previous 
acts  revised  and  consolidated)  which,  in  conferring  power  on 
the  Judges,  declares  that  "  they  shall  have,  use,  exercise  and 
enjoy  the  same  powers  and  authorities,  rights,  privileges  and 
pre-eminences,  as  were  had,  used,  exercised  and  enjoyed  by 
any  former  Judges  of  the  superior  courts,"  &c.  This  and  the 
13th  section  of  the  Declaration  of  Eights,  and  the  statute  of 
31  Charles,  did  most  certainly  secure  the  frill  benefit  of  the 
writ,  both  in  term  and  vacation. 

5.  In  1818,  (Eev.  Code,  chapter  33,  the  present  Supreme 
Court  was  established,  with  powers  defined  both  for  the  Judg- 
es, and  the  Court.  As  Judges,  it  is  provided  by  sec.  5,  "  that 
they,  and  each  of  them,  shall  have,  use,  exercise  and  enjoy 
the  same  powers  and  authorities,  rights,  privileges  and  pre- 
eminences," &c,  as  were  had,  used,  exercised  and  enjoyed 
by  Judges  of  the  superior  courts,  except  that  none  of  them 
should  hold  a  superior  court.    This  gave  them  the  power  to 


36  IN  THE  SUPKEME  COUKT. 

In  the  matter  of  Bryan. 

issue  writs  of  habeas  corpus.  As  a  court,  among  other  pow- 
ers, they  were  vested  (section  6)  with  the  "  power  to  issue 
writs  of  certiorari,  scire  facias,  habeas  corpus,  mandamus, 
and  all  other  writs  which  may  be  proper  and  necessary  for  the 
exercise  of  its  jurisdiction  and  agreeable  to  the  principles  and 
usages  of  law."  No  one  ever  doubted  that  before  the  Kevi- 
sal  of  1836,  the  Judges  had  power  to  issue  writs  in  vacation. 

The  quoted  language  of  sec.  6,  was  evidently  borrowed 
from  sec.  14,  of  the  Federal  Judiciary  act  of  1789. 

Under  that  act  and  up  to  the  establishment  of  our  Supreme 
Court,  the  Federal  Supreme  Court  was  accustomed  to  issue 
the  writs  without  reference  to  any  case  under  its  immediate 
jurisdiction,  or  which  could  come  under  it;  Ex  parte  Boll- 
man,  4  Cr.  at  101. 

In  the  United  States  v.  Hamilton,  3  Dall.  17,  (1795,)  the 
prisoner  charged  with  treason,  had  been  committed  upon  the 
warrant  of  the  District  Judge  of  Pennsylvania — the  Court 
issued  the  writ  and  discharged  him  on  bail. 

In  Ex  parte  Burford,  3  Cr.  448,  (1806,)  the  prisoner  had 
been  committed  to  jail  in  the  District  of  Columbia,  in  default  of 
finding  security  for  good  behavior.  He  was  brought  up  and 
discharged, ^because  the  warrant  did  not  state  "some  good 
cause  certain,  supported  by  affidavit." 

In  Ex  parte  B 'oilman,  4  Cr.  75,  (1807) — prisoner  commit- 
ted upon  a  charge  of  treason  ;  writ  issued  by  Supreme  Court 
after  elaborate  argument,  and  prisoner  discharged. 

In  Ex  parte  Kearney,  7  Wheat,  39,  (1822,)  the  doctrine  in 
Ex  parte  Bollman,  is  affirmed. 

The  jurisdiction  is  said  to  be  appellate,  because  the  writ 
supervises  the  commitment  by  an  inferior  tribunal — this  is  a 
refinement;   Ex  parte  Metzger,  16  Curt.  352.  v 

It  took  jurisdiction  in  all  cases  of  a  technical  appellate  cha- 
racter, except  when  the  defendant  was  in  confinement  under 
the  proceedings  of  a  court  of  competent  jurisdiction  ;  Ex  par- 
te Wat7cins,S  Pet.  201. 

6.  Without  any  grant  to  issue  the  writ,  the  Court  would 
have    had    the    power  from  its  very  constitution;  the  dis- 


JUNE  TERM,  1863. 


In  the  matter  of  Bryan. 


trict  courts,  composed  of  three  Judges, possessed  it,  though 
never  specially  conferred  ;  Rev.  Code,  1820,  chap.  115.  The 
grant  was  made  of  abundant  caution.  The  words,  "  which 
may  be  proper  and  necessary  for  the  exercise  of  its  jurisdic- 
tion," refer  not  to  the  writs  named,  but  to  the  antecedent 
words,  "  and  all  other  writs  ;"  Ex  parte  Bollman,  at  101. 
It  is  clothed  with  an  independent  power  to  issue  writs  of 
habeas  corpus,  mandamus,  &o. 

7.  If  the  Court  can  exercise  similar  jurisdiction  to  that  ex- 
ercised by  the  Supreme  Court  of  the  United  States,  in  United 
States  v.  Hamilton,  Ex  parte  Bur  ford,  Ex  parte  Bollman, 
it  concedes  the  question,  and  admits  the  power  in  the  Court 
to  issue  in  all  cases  of  illegal  confinement  where  no  court  has 
taken  jurisdiction  of  the  case. 

Mr.  Strong,  District  Attorney  of  the  Confederate  States, 
with  whom  was  Mr.  Bragg,  argued  as  follows : 

Has  the  Supreme  Court  jurisdiction  to  issue  the  writ  of  ha- 
beas corpus  f 

The  settled  opinion  of  the  profession,  including  the  Judges 
of  the  Court  itself,  seems  to  have  always  been  against  the  ju- 
risdiction, as  is  shown  by  the  fact,  that  no  attempt  has  ever  been 
made  to  exercise  it,  and  that  writs  of  the  kind  nave  been  is- 
sued and  acted  upon  by  the  individual  judges  during  the  ses- 
sion of  the  Court. 

1st.  It  is  contended  that  the  Court  has  this  jurisdiction  by 
the  Common  Law,  it  being  "incident  by  that  law  to  every 
Superior  Court  of  Record."  This  reasoning  would  be  valid 
if  the  jurisdiction  of  the  Court  were  to  be  determined  by  the 
Common  Law.  But  this  is  not  the  case.  The  powers  of  all 
our  courts  depend  solely  upon  the  statute  which  creates  them. 
The  Common  Law  itself,  in  this  State,  depends  for  its  force 
upon  a  statute.  Rev.  Code,  chap.  22.  And  the  Legislature 
could  uproot  it  to-morrow;.  and  establish  the  code  of  Napole- 
on in  its  stead.  There  is  the  same  kind  of  difference  between 
a  Court  of  Record,  in  England,  and  in  this  State,  that  there 
is  between  corporations.  Trustees  of  Davidson  College  v. 
Chambers'  Executors,  3  Jones'  Eq.  268. 


38  IE  THE  SUPREME  COUKT. 

In  the  matter  of  Bryan. 

The  clause  in  the  bill  of  rights  that  "every  freeman  re- 
strained of  his  liberty  is  entitled  to  a  remedy  to  enquire  into 
the  lawfulness  of  such  restraint,  and  to  remove  the  same,  if 
unlawful,  and  such  remedy  ought  not  to  be  denied  or  delay- 
ed," is  certainly  satisfied  by  the  grant  of  power  to  the  eight 
circuit  judges,  both  in  term  time  and  in  vacation,  and  to  the 
three  Judges  of  this  Court,  in  vacation,  to  issue  and  act  upon 
the  writ.  The  obligation  of  the  State.  Legislature  to  protect 
the  citizen  in  the  enjoyment  of  the  two  great  rights  of  person- 
al security,  and  private  property,  is  perfect.  The  obligation, 
.  as  to  the  third  great  right  of  personal  liberty,  cannot  be  render- 
ed more  than  perfect,  by  the  above  clause  of  the  Bill  of  Rights. 
And  the  establishment  of  a  Supreme  Court  by  the  constitu- 
tion, though  aided  by  the  clause  in  question,  can  no  more  give 
that  court  original  jurisdiction  to  protect  one  of  these  rights 
by  habeas  corpus,  than  to  protect  the  others  by  writs  of  re- 
plevin,. &c. 

That  the  Superior  Courts,  in.  term  time,  have  the  right  to 
issue  writs  of  habeas  corpus,  is  manifest  from  the  statute  which 
confers  generaljurisdiction  ;  Rev.  Code,  chap.  31,  sec.  17,  and 
from  sections  4  and  5  of  chap.  55  of  the  Rev.  Code. 

2d.  It  is*contended  that  the  jurisdiction  is  conferred  by 
the  statute.  That  portion  of  it,  material  to  our  enquiry,  is  as 
follows:  The  court  shall  have  "power  to  issue  writs  of  cer- 
tiorari, scire  facias,  habeas  corpxis,  mandamus,  and  all  other 
writs  which  may  be  proper  and  necessary  for  the  exercise  of  its 
jurisdiction,  and  agreeable  to  the  principles  and  usages  of  law." 
It  is  admitted  that  the  easy  natural  construction,  which  the 
learned  and  unlearned  would  place  upon  this  sentence,  is  that 
the  writs  enumerated,  are  only  those  which  are  ancillary  to 
the  other  powers  of  the  Court,  and  necessary  to  the  exercise 
of  its  jurisdiction.  For  it  is  a  settled  principle,  of  both  legal 
and  grammatical  construction,  that  the  words,  "  all  other 
writs,"  following  an  enumeration  of  particular  writs  mean 
"all  other  such  writs."  Owen's  on  Statutes,  9th  Law  Libra- 
ry 777  ;  2d  Rep.  46  ;  State  v.  Weaver,  Busb.  13.  So  that  the 
sentence  may  fairjy  be  translated,  "all  other  writs  such  as 


JUNE  TERM,  1863. 


In  the  matter  of  Bryan. 


the  above"  or  " all  other  writs  which  like  the  above,  may  be 
necessary,  &c  To  this,  it  was  objected  by  Mr.  Moore  and 
Mr.  Winston,  that  no  cases  could  be  conceived  in  which  all 
the  enumerated  writs  could  be  used  in  an  ancillary  character, 
and  that,  therefore,  they  must  have  been  intended  to  be  us- 
ed without  restriction.  The  main  force  of  the  argument 
was  spent  upon  this  point,  but  it  fails  totally.  As  to  the- 
first  two,  there  is  no  difficulty.  As  to  the  writ  of  ha- 
beas corpus,  it  would  certainly  lie  to  bring  up  a  witness  to 
testify,  where  his  presence  would  be  necessary,  under  sec.  15, 
chap.  33,  Eev.  Code,  or  to  bring  up  to  answer,  a  defendant  in 
a  writ  of  capias  ad  satisfacienditm,  issued  from  this  Court, 
who  had  given  bond  for  his  appearance,  and  had  been  im- 
prisoned upon  process  issuing  from  another  court.  As  to  the 
writ  of  mandamus,  when  upon  an  appeal  to  this  Court,  the 
judgment  is,  that  the  peremptory  writ  issue,  it  then  becomes 
necessary  to  the  exercise  of  this  Court's  jurisdiction,  and  is 
ancillary  in  its  character.  It  may  also  be  used  to  compel  the 
the  Superior  Court  to  send  up  a  record,  or  to  do  any  other 
duty.     Bacon's  Abridgment,  Letter  A,  p.  419. 

It  is  asked  by  the  counsel,  why  enumerate  these  writs  in 
the  statute,  if  of  a  secondary  character,  since,  in  that  case-, 
they  would  be  included  in  the  general  words,  "  all  writs  ne- 
cessary and  proper  to  the  exercise  of  its  jurisdiction  "?  In 
answer,  it  may  be  asked  why  insert  these  general  words 
themselves,  since,  without  them,  the  Court  would  have  had 
the  power  which  they,  profess  to  confer  ? 

The  construction  now  contended  for,  has  been  placed  upon 
the  act,  by  this  Court,  Jones  v.  McLauUn,  1  Jones  392.  In 
that  case,  it  was  decided  that  a  writ  of  scire  facias  would  not.  lie 
against  bail,  because  that  was  an  original  proceeding,  and  it 
was  not  necessary  to  the  exercise  of  the  jurisdiction  of  the 
Court.  The  writs  enumerated  in  the  same  clause,  must  of 
course  stand  upon  the  same  footing.  And,  if  the  Court  can- 
not, for  the  above  reason,  exercise  an  original  jurisdiction  in 
issuing  the  writ  of  scire  facias,  it  cannot,  for  the  very  same 
reason,  do  so,  in  issuing  the  writ  of  habeas  corpus. 


m  IN  THE  SUPREME  COURT. 

In  the  matter  of  Bryan. 

Section  14  of  the  Judiciary  Act  of  the  "Dinted  States,  which 
'confers  jurisdiction  upon  the  Supreme  Court,  is  nearly  identi- 
cal in  language  with  our  own.  That  act  has  received  the  con- 
struction now  insisted  on.  Ex  parte  :B oilman  and  Swartwout, 
4  Cranch  75  ;  Mo  parte  Metsger,  16  'Curtis  318. 

If  it  be  an  absurdity,  that  a  single  judge  can  do  in  vacation 
what  the  whole  court  cannot  do  in  term  time,  the  fault  is  with 
the  Legislature.  But  it  ;may  jhave  been  well  intended  that 
■this  tribunal  should,  during  term  "time,  be  only  employed 
with  those  questions,,  the  decision  -of  which,  by  an  inferior 
tribunal,  had  failed  to  give  satisfaction. 

3STo  -necessary  conflict  of  decision-,  will  arise  out  of  this  con- 
struction. From  the  judgment  of  a  superior  court,  in  term 
time,  an  appeal  will  lie  to  the  Supreme  Court;  Rev.  Code, 
■chap.  4,  sec.  21.  In  the  mean  while,  the  prisoner  will  be  in 
■custodia  legis,  Hurd  on  Habeas  Corpus,  p.  324,  and  the  Court 
may  either  take  his  recognizance  for  his  appearance,  at  its 
next  term,  or  before  the  Supreme  Court,  to  perform  the  final 
judgment.  It  is  believed,  upon  the  equity  of  the  statute  reg- 
ulating appeals,  above  quoted,  and  the  general  principles 
governing  the  writ  of  recordari,  that  hy  that  writ,  the  deci- 
sions of  any  judge  in  vacation  might  be  brought  to  this  Court 
for  review.  The  writ  was  thus  used  in  Wisconsin  to  bring  up 
for  review  the  decision  of  one  of  the  Justices  of  the  Snpreme 
Court  of  that  State ;  Ableman  v.  Booth,  21  How.  506.,  But, 
if  the  evils  from  the  conflicting  decisions  of  the  judges  out  of 
court  cannot  be  thus  remedied  in  this  case,  neither  can  they 
in  the  other. 

Mr.  P.  II  Winston,  Sen'r.,  in  favor  of  the  jurisdiction, 
argued  as  follows : 

Every  Court  of  general  jurisdiction  in  civil  cases,  has  pow- 
er to  issue  wrrits  of  habeas  corpus.  It  belongs  to  the  courts  of 
Chancery,  Common  Pleas  and  Exchequer  as  well  as  the  King's 
Bench  ;  Bac.  Abr.  Hab.  Corp.  B.  2  ;  Com.  Dig. ;  BusheVs 
case,  Yaughan,  155  ;    Wood's  case,  3  Wilson,  172. 

This  jurisdiction  is  not  derived  by  implication  from  31  Car. 
■2,  for  BusheVs  case  was  before  that  statute,   and  in  Woods 


JUNE  TEEM,  1863.  41 

>  __ 

In  the  matter  of  Bryan. 

case,  it  is  treated  by  the  Court  as  inherent  in  every  court  of 
superior  jurisdiction.  It  is  founded  on,  the  principle  of  the 
common  law,  thus  expressed  in  our  State  Constitution,  "  Eve- 
ry freeman  restrained  of  his  liberty,  is  entitled  to  a  remedy 
to  enquire  into  the  lawfulness  thereof,  and  remove  the  same 
if  unlawful,  and  such  remedy  ought  not  to  be  delayed  or  de- 
nied ;"  Declaration  of  Rights,  sec.  13. 

2.  Our  Habeas  Corpus  Act,  Rev.  Code,  ch.  55,  by  giving 
power  lo  each  Judge  of  the  Supreme  and  Superior  Courts  to 
issue  the  writ,  by  necessary  implication  gives  the  power  to 
the  courts.  This  power  is  assumed  by  section  5,  to  exist  in 
the  Superior  Courts,  either  by  common  law  or  by  force  of  that 
Act. 

3.  The  power  is  expressly  conferred  by  the  act,  creating  this 
Court,  Rev.  Code,  ch.  33,  sec.  6.  After  defining  its  appellate  ju- 
risdiction, the  act  declares  that  it  shall  have  original  and  ex- 
clusive jurisdiction  in  repealing  letters  patent,  and  shall  also 
have  power  to  issue  writs  of  certiorari,  scire  facias,  habeas 
corpus,  mandamus,  and  all  other  writs,  which  may  be  proper 
and  necessary  for  the  exercise  of  its  jurisdiction,  and  agreea- 
ble to  the  principles  and  usages  of  law."  "  Habeas  corpus" 
in  this  clause,  means  habeas  corpus  ad  subjiciendum,  c&c. — 
This  is  a  grant  of  the  substantive  power  to  issue  writs  of  hab- 
eas corpxis.  It  is  associated  with  jurisdiction,  undeniably  ori- 
ginal; (to  repeal  letters  patent.)  No  case  can  be  stated  in  which 
this  writ  can  be  needed,  or  useful  for  the  exercise  of  its  appellate 
jurisdiction,  or  its  original  jurisdiction  in  other  matters.  It 
is  consistent  with  the  grammatical  construction  of  the  sen- 
tence. The  words,  "  which  may  be  proper  and  necessary  for  the 
exercise  of  its  jurisdiction,"  &c,  have  for  their  antecedent 
"  all  other  writs."  This  clause  is  a  copy  of  the  14rth  section  of 
the  Judiciary  Act  of  the  United  States,  with  the  exception  of 
a  few  words,  which  cannot  vary  the  construction,  and  in  the 
case  of  JEx parte  Bolivian  and  Swartwout,  4  Cranch,  75,  the 
Supreme  Court  of  the  United  States  decided  that  that  section 
conferred  on  that  Court  a  substantive  power  to  issue  the  writ 


42  m  THE  SUPREME  COURT. 

0 
. , \ 

In  the  matter  of  Bryan. 

for  the  purpose  of  obtaining  jurisdiction  and  exercising  it  in 
cases  not  otherwise  within  its  cognisance. 

Unless  this  construction  be  adopted,  the  citizens  of  this 
State  have  no  such  efficient  remedy  for  unlawful  restraints  of 
their  liberty,  as  the  13th  sec.  of  the  Declaration  of  Rights,  makes 
it  the  duty  of  our  Legislature  to  provide.  A  Judge  out  of  court, 
has  not  the  means  of  fully  investigating  cases  or  of  enforcing 
his  decisions.  His  judgments  cannot  have  the  requisite  au- 
thority, efficacy  or  publicity,  and  the  superior  courts  sit  but 
twice  a  }Tear  for  a  week  each  time. 

Pearson,  C.  J.  At  the  beginning  of  the  term,  the  Judges 
i  requested  the  members  of  the  bar  to  investigate  the  subject 
and  give  their  opinions  and  their  reasons  for  them  pro  or  con, 
on  this  question :  Has  the  Court  jurisdiction  to  issue  a 
writ  of  habeas  corpus,  returnable  to  the  Court,  and  there- 
upon to  inquire  of  the  lawfulness  of  any  restraint  put  on  the 
liberty  of  a  citizen.  We  have  been  favored  with,  the  opin- 
ions of  Messrs.  Moore  and  Winston  in  favor  of  the  jurisdic- 
tion, and  of  Mr.  Strong  against  it,  and  the  subject  has  been 
fully  discussed.  After  giving  it  due  consideration,  we  are  of 
opinion  that  the  Court  has  jurisdiction. 

This  conclusion  is  put  on  two  grounds  : 

1st.  The  Court  has  jurisdiction  by  common  law.  The  laws 
of  our  State  rest  for  a  foundation  upon  the  common  law  of 
England.  It  is  an  admitted  principle  of  the  common  law, 
that  every  court  of  record  of  superior,  jurisdiction  has  power 
to  issue  the  writ  of  habeas  corpus,  which  is  the  great 
right  for  the  protection  of  the  liberties  of  the  citizen. — 
This  ','  power  is  an  incident  to  every  superior  court  of  record." 
3  Wilson,  1T2  ;  3  Bac.  Abr.,  title  Habeas  Corpus;  notes.  It 
arises  from  the  obligation  of  the  King  to  protect  all  of  his 
subjects  in  the  enjoyment  of  their  right  of  personal  liberty, 
and  for  this  purpose  to  inquire  by  his  courts  into  the  condition 
of  any  of  his  subjects.  As  this  duty  of  the  King  in  regard  to 
any  of  his  subjects,  confers  on  every  court  of  record  of  superi- 
or jurisdiction  the  power  to  issue  the  writ,  as  incident  to  its 


JUNE  TEEM,  1863.  43 


In  the  matter  of  Bryan. 


existence,  it  follows  that  the  doty  of  the  State  of  North  Caro- 
lina in  regard  to  its  citizens,  must  confer  a  like  power  on  all 
of  its  courts  of  record  of  superior  jurisdiction,  as  incident  to 
their  existence  ;  for  surely,  nnder  our  Constitution  and  Bill  of 
Rights,  in  which  is  reiterated  the  great  principle  of  Magna 
Charta,  "  every  free  man  restrained  of  his  liherty  is  entitled 
to  a  remedy  to  inquire  into  the  lawfulness  thereof,  and  to  re- 
move the  same  if  unlawful,  and  such  remedy  ought  not  to  be 
denied  or  delayed."  The  personal  liberty  of  our  citizens  must 
be  equally  as  well  protected  and  secured  as  the  personal  lib- 
erty of  the  subjects  of  the  King  of  England. 

Our  Constitution  vests  the  legislative  power  in  a  General 
Assembly  ;  the  Executive  power  in  a  Governor,  and  the  Su- 
preme Judicial  power  in  a  Supreme  Court ;  so  that  the  estab- 
lishment of  a  Supreme  Court,  without  any  words  to  that  ef- 
fect, necessarily  and  as  an  incident  to  its  existence  by  force  of 
the  Bill  of  Rights,  of  the  Constitution  and  the  principles  of 
the  common  law,  invests  it  with  power  fo  inquire  by  means 
of  this  great  "Writ  of  Right  into  thelawfulness  of  any  restraint 
upon^he  liberty  of  a  free  man,  and  if  in  establishing  a  Su- 
preme Court,  the  Legislature  had  in  express  terms  denied  the 
Court  the  power  to  issue  this  writ  and  prohibited  it  from  so 
doing,  such  prohibition  would  have  been  void  and  of  no  ef- 
fect. 

Our  conclusion  that  the  Supreme  Court  has  power  to  issue 
the  writ  is  confirmed  by  a  consideration  of  the  provisions  of 
the  habeas  corpus  Act,  Rev.  Code,  chap.  55.  It  is  taken  from 
two  English  Statutes,  31  Charles  II  and  56  Geo.  III.  We 
have  seen  that  all  of  the  Superior  Courts  of  England  had  pow- 
er by  the  common  law  to  issue  the  writ,  but  the  courts  could 
only  act  in  term  time,  and  a  free  man  might  be  unlawfully 
imprisoned  in  vacation  time,  so  the  remedy  would  be  delay- 
ed, and  to  provide  the  means  of  speedy  inquiry  into  the  cause 
of  imprisonment,  it  is  enacted  by  31  Charles  II,  that  every 
Judge  of  all  the  courts  of  superior  jurisdiction,  on  the  appli- 
cation of  any  person  imprisoned  upon  a  criminal  charge,  (un- 
less after  conviction,)  shall  in  the  vacation  time,  under  a  pen- 


44  IN  THE  SUPREME  COURT. 

In  the  matter  of  Bryan. 

•alty  of  five  hundred  pounds  grant  a  wrife  of  habeas  corpus, 
a-eturnable  without  delay,  and  by  56  George  III  it  is  enacted, 
that  all  of  the  Judges  shall,  in  the  vacation  time,  under  a  like 
;penalt}T,  in  the  same  manner  grant  the  writ  on  the  applica- 
tion of.any  person  imprisoned  or  restrained  of  his  liberty  for 
any  cause  other  than  a  criminal  charge.  So  in  England  any 
person,  whether  imprisoned  on  a  criminal  charge  or  restrain- 
ed of  his  liberty  for  any  other  cause,  had  a  right  during  the 
sitting  of  the  courts,  by  application  to  the  Court,  and  during 
the  vacation  by  application  to  any  one  of  the  Judges,  to  have 
the  cause  of  his  being  imprisoned  or  restrained  of  his  liberty 
Inquired  into  without  delay. 

Our  habeas  corpus  Act,  as  before  observed,  is  taken  from 
these  two  English  Statutes,  and  not  only  gives  power  to,  but 
requires,  under  a  penalty  of  twenty-five  hundred  dollars,  any 
Judge  of  the  Supreme  or  Superior  Courts  in  the  vacation 
time,  to  issue  the  writ  of  habeas  corpus  on  the  application  of 
any  person  imprisoned  on  a  criminal  charge  or  otherwise  re- 
strained of  his  liberty. 

It  is  manifest  that  this  act  pre-supposes  that  both  tli^  Su- 
preme and  the  Superior  Courts  had  power  in  term  time  to 
issue  the  writ,  and  the  intention  was  to  extend  the  remedy  to 
the  vacation.  This  must  be  a  declaration  by  the  Legislature 
of  the  fact  that  both  the  Supreme  and  the  Superior  Courts  had 
power  to  issue  the  writ,  or  we  must  adopt  the  absurdity,  that 
the  Legislature  intended  to  give  to  a  single  Judge  in  vacation, 
a  power  which  the  Court  did  not  possess  in  term  time,  and 
we  can  only  account  for  the  fact  that  while  giving  this  power 
to  the  Judges  in  vacation,  the  Legislature  did  not  in  express 
words  confer  a  like  power  on  the  courts,  upon  the  ground 
that  it  was  taken  for  granted  that  our  courts,  like  those  in 
England,  already  had  the  power ;  for  under  the  unrestricted 
legislative  power  of  the  General  Assembly,  it  not  only  had 
the  power,  but  it  was  its  duty  by  the  Constitution  and  Bill  of 
Rights  to  confer  this  power  on  both  the  Supreme  and  Supe- 
rior Courts,  if  the  Courts  did  not  already  possess  it. 

2d.  Suppose,  for  the  sake  of  argument,  it  was  necessary  that 


JUNE  TEEM,  1863.  45 

In  the  matter  of  Bryan. 

the  power  should  be  conferred  on  the  Supreme  Court  by  stat- 
ute, we  are  of  opinion  that  it  is  conferred  by  the  Act  estab- 
lishing the  Court ;  Eev.  Code,  chapter  33,  section  6.  It  is  in 
these  words  :  "  The  courts  shall  have  power  to  hear  and  de- 
termine all  questions  of  law  brought  before  it  by  appeal  or 
otherwise  from  a  superior  court  of  law  and  to  hear  and  de- 
termine all  cases  in  equity  brought  before  it  by  appeal  or  re- 
moval from  a  court  of  equity,,  and  shall  have  original  and  ex- 
clusive jurisdiction  in  repealing  letters  patent,  and  shall  also 
have  power  to  issue  writs  of  certiorari,  scire  facias,  habeas 
corpus,  mandamus,  and  all  other  writs  which  may  be  proper 
and  necessary  for  the  exercise  of  its  jurisdiction  and  agreea- 
ble to  the  principles  and  usages  of  law," 

There  are  several  kinds  of  writs  of  habeas  corpus  :.  inferior 
ones,  to  enable  the  Court  to  exercise  its  jurisdiction,  for  in- 
stance, ad  testificandum — to  bring  a  man  out  of  jail  to  be 
a  witness ;  and  the  great  Writ  of  Right,  habeas  corpus 
to  .bring  any  citizen  alleged  to  be  wrongfully  imprison- 
ed or  restrained  of  his  liberty,  before  the  Court,  with  the 
cause  of  his  arrest  and  detention,  that  the  matter  may  be  in- 
quired, of  and  the  party  set  at  liberty  if  imprisoned  against 
law.  This  proceeding  is  original,  and.  in  no  wise  connected 
with  or  dependent  on  any  other  matter  over  which  the  Court 
has  jurisdiction. 

The  question  is  :  Does  the  Act  restrict  the  power  of  the 
Court  to  writs  of  the  inferior  sort,  or  does  it  confer  power  to 
issue  the  great  Writ  of  Eight  ? 

In  support  of  the  first  construction,  it  is  urged  that  the 
words,  "  all  other  writs  which  may  be  proper  and  necessary 
for  the  exercise  of  its  jurisdiction,"  show  that  the  writs  before 
specified,  were  intended  to  be  of  the  same  kind,  and  must 
have  the  effect  of  restricting  the  power  to  writs  of  the  inferior 
sort.  Several  considerations  are  urged  in  reply  :  In  strict 
grammatical  construction,  the  restrictive  words,  "  which  may 
be  proper  and  necessary  for  the  exercise  of  its  jurisdiction," 
refer  to  the  last  antecedent  "  all  other  writs,"  so  as  to  make 
the  true  reading  (supplying  the  elipsis,)  "  and  shall  also  have 


IN  THE  SUPREME  COURT. 


In  the  matter  of  Bryan. 


power  to  issue  all  other  writs  which  may  be  proper  and  neces- 
sary for  the  exercise  of  its  jurisdiction."  This  further  reply 
is  made  :  If  the  intention  was  merely  to  give  power  to  issue 
the  inferior  writs  necessary  to  the  exercise  of  its  jurisdiction, 
(which  power  every  court  in  fact  has,  by  implication,)  it  w^ts 
sufficient  to  say,  "  and  the  Court  may  issue  all  such  writs  as 
may  be  necessary  for  the  exercise  of  its  jurisdiction."  Instead 
of  this  simple  clause  immediately  following  the  grant  of  ori- 
ginal jurisdiction  to  repeal  letters  patent,  comes  this  formal 
commencement :  "  and  shall  also  haDe  power  to  issue  writs 
of  certiorari,  scire tfdcias,  habeas  corpus,  mandamus."  Why 
this  formal  announcement  of  substantive  grant  of  power  f 
And  why  are  there  four  writs  particularly  named>  if  the  ob- 
ject was  merely  to  authorize  the  Court  to  issue  the  inferior 
sort  of  writ's  ? 

In  questions  of  this  kind,  the  Court  is  not  confined  to  the  nar- 
row field  of  the  import  of  words,  construction  of  sentences 
and  rules  of  grammar,  but  may  draw  to  its  aid  considerations 
of  a  more  comprehensive  nature,  and  if  due  weight  is  given 
to  the  power  of  the  Legislature — its  duty — the  object  in  view 
and  the  nature  of  the  subject — the  conclusion  is  irresistible, 
that  it  was  the  intention  to  give  the  Court  power  to  issue  the 
great  ""Writ  of  Right? 

The  power  of  the  Legislature  in  respect  to  the  jurisdiction 
it  was  about  to  confer  on  the  Supreme  Court  then  to  be  es- 
tablished, was  unlimited — it  had  the  same  power  to  confer 
■original  as  appellate  jurisdiction. 

It  was  the  duty  of  the  Legislature  under  the  Bill  of  Rights 
:and  the  Constitution,  to  provide  in  the  most  ample  manner  for 
the  protection  of  the  liberty  of  "all  free  men."  The  object 
in  establishing  a  Supreme  Court,  was  to  provide  the  tribunal 
'best  calculated  to  secure  uniformity  and  correctness  of  deci- 
sion in  respect  to  all  questions  involving  "  rights  of  person  " 
and  "  rights  of  things."  This  it  was  supposed  could  be  ac- 
complished by  a  Court  composed  of  three  judges.  From  the 
nature  of  the  subject,  in  actions  at  law,  and  indictments  where 
the  facts  'must  be  tried  by  a  jury,  it  was  seen  to  be  impracti- 


JUNE  TEEM,  1863.  47 


In  the  matter  of  Bryan. 


cable  for  the  Supreme  Court  to  exercise  original  jurisdiction. 
Hence,  it  was  deemed  expedient,  that  all  actions  and  indict- 
ments should  originate  in  the  lower  courts,  where  the  facts 
can  be  found  so  as  to  present  to  the  Supreme  Court  only  ques- 
tions of  law  by  way  of  appeal :  In  suits  in  equity  where,  al- 
though the  facts  are  sometimes  complicated,  the  mode  of  trial 
is  by  the  court,  it  was  deemed  expedient  that  the  proceedings 
should  originate  below  and  then  be  brought  up  by  appeal  or 
removal  after  being  set  for  hearing.  So,  in  respect  to  these 
remedies  only  appellate  jurisdiction  is  conferred. 

There  remained  a  fourth  distinct  and  important  subject 
of  jurisdiction,  to  wit:  the  writ  of  habeas  corpus.  From 
its  nature,  no  complicated  state  of  facts  can  be  presented, 
so  that  consideration  presented  no  objection  to  the  grant 
of  original  jurisdiction  to  the  Supreme  Court.  While  on  the 
other  hand,  as  all  of  the  Judges  of  the  Supreme  and  Superi- 
or Courts  had  power  to  issue  such  writs  and  decide  upon  the 
lawfulness  of  the  imprisonment,  in  order  to  prevent  conflict 
of  decision  and  utter  confusion  and  chaos,  and  to  give  uni- 
formity and  correctness  to  decisions  involving  the  liberty  of 
the  citizen,  the  necessity  of  conferring  original  jurisdiction  on 
the  Supreme  Court  to  issue  the  writ,  and  decide  on  the  right, 
was  patent;  and,  if  the  statute  in  question  does  not  confer  the 
power,  no  reason  can  be  assigned  for  the  omission  :  unless  it 
was  the  opinion  of  the  Legislature  that  the  power  would  at- 
tach to  the  Court  as  soon  as  it  was  established,  as  an  incident 
of  its  existence,  upon  the  principles  of  the  Common  Law  and 
Bill  of  Rights. 

The  Legislature  had  full  power.  It  was  its  duty — there 
was  a  patent  necessity — the  object  in  establishing  the  Supreme 
Court  could  not  otherwise  be  fulfilled,  and  no  objection  to  it 
could  be  suggested.  It  follows  that  the  Court  has  the  power, 
either  on  the  ground  that  the  statute  confers  it,  or  the  omis- 
sion to  do  so  is  a  legislative  declaration  that  the  Court  posses- 
ses the  power  as  incident  to  its  existence. 

On  the  able  argument  with  which  we  have  been  favored 
by  Mr.  Strong,  he  called  attention  to  the  fact  that  the  act  of 


48  IN  THE  SUPKEME  COTJET. 

_ . , 

In  the  matter  of  Bryan. 

Congress,  1789,  establishing  the  Supreme  Court  of  the  United 
States,  used  nearly  the  same  language  as  the  act  of  the  Legis- 
lature establishing  the  Supreme  Court  of  this  State,  and  that 
in  the  construction  of  the  act  of  Congress,  the  Supreme  Court 
of  the- United  States  have  decided  that  the  Court  cannot  issue 
the  writ  of  habeas  corpus  ,  except  where  the  writ  is  incident 
to  an  appellate  jurisdiction. 

That  is  true,  and  it  seems  to  account  for  the  general  impres- 
sion which  has  prevailed  in  this  State  against  the  power  of 
the  Court.  The  fact  that  so  many  applications  have  been 
made  to  the  Judges  for  writs  of  habeas  corpus,  during  the  last 
few  months,  has  directed,  attention  to  this  subject,  and  a  clos- 
er and  more  serious  investigation  than  the  subject  had  before 
received,  results  in  the  conclusion  that  the  Court, has  the  pow- 
er, and  that  the  erroneous  impression  which  had  prevailed,  is 
to  be  ascribed  to  the  circumstance  that  due  weight  had  not 
been  given  to  the  difference  between  the  two  Courts  in  regard 
to  the  sources  from  which  jurisdiction  may  be  derived.  The 
Supreme  Court  of  the  United  States  can  derive,  no  jurisdic- 
tion fro  mi  the  principles  of  the  Common  Law..  Its  jurisdic- 
tion must  rest  solely  on  acts  of  Congress,  and  the  power  of 
Congress  to  confer  jurisdiction  rests  on  the  constitution  of  the- 
United  States.  It  can  have  no-  power  except  that  which  is 
conferred  by  the  constitution,  and  by  it  the  power  to  establish 
a  Supreme  Court,,  is  restricted  to  a  court  of'  appellate  juris- 
diction, except  in  cases  affecting  embassadors,  &c,  art..  3, 
sec;  2. 

The  very  reverse  of  all  this  is  the  case  in  respect  to  the  Su- 
preme Court  of  the  State.  It  may  derive  its  jurisdiction  from 
the  principles  of  the  Common  Law.  The  power  of  the  Legis- 
lature to  confer  jurisdiction  is  unlimited,  and  there  is  no  rea- 
son why  it  .should  not,  if  deemed  expedient,  have  established 
a  Supreme  Court  with  full  original  jurisdiction,  or  one  with 
jurisdiction  partly  original  and  partly  appellate. 

In  the  opinion  of  Judge  Marshall,  Ex  parte  Bolivian,  4th 
Cranch  98,  2  Curtis  24,  a  full  and  critical  examination  is 
made  of  the   act  of  Congress,  and  he  comes  to  the  conclu- 


JUNE  TERM,  1863.  49 


In  the  matter  of  Bryan, 

sion,  that  by  its  true  construction  it  would  confer  on  the  Su- 
preme Court  jurisdiction  to  issue  the  writ  of  habeas  corpus, 
but  for  the  fact  that  it  was  to  be  construed  in  reference 
to  the  limited  power  of  Congress.  Our  act,  on  the  con- 
trary, is  to  be  construed  in  reference  to  the  unlimited  pow- 
er of  the  Legislature,  and  in  this  view  the  opinion  of  Judge 
Marshall  strongly  supports  the  conclusion  to  which  we  have 
arrived. 

Mr.  Strong  also  cited  the  case  of  Jones  v.  McLaurin,  7 
Jones,  392.  That  was  a  scire  facias  against  bail,  and  the 
Court  decide  that  it  has  not  jurisdiction,  because  the  scire  fa- 
cias, as  there  used  is,  in  effect,  an  action  of  debt,  in  respect  to 
which  the  Court  has  only  appellate  jurisdiction.  The  ques- 
tion we  have  before  us  is  plainly  distinguishable.  The  habeas 
corpus,  is  totally  distinct  in  its  nature  from  any  action  at  law, 
or  proceeding  in  the  nature  of  an  action,  or  suit  in  equity,  or 
indictment,  and  is  put  by  us  on  grounds  peculiar  to  itself. 

Our  conclusion  is,  that  the  Court  has  power  to-  issue  writs 
of  habeas  corpus,  returnable  to  the  Court,  and  thereupon  to 
inquire  of  and  decide  upon  the  lawfulness  of  any  restraint  put 
on  the  liberty  of  a  citizen.  This  opinion  does  not  affect  the 
question  of  the  jurisdiction  of  a  State  court  where  the  arrest 
is  justified  on  the  authority,  or  by  color,  of  an  act  of  the  Con- 
gress of  the  Confederate  States.  That  question  may  be  the 
subject  of  future  consideration. 


Afterwards,  the  cause  was  taken  up  on  its  merits. 

Mr.  Moore,  with  whom  was  Henry  C.  Jones,  for  the  peti- 
tioner, argued  as  follows : 

1.  In  the  view  of  able  lawyers,  the  substitution  involves 
a  contract  with  the  Government  :  they  maintain  that  the  pro- 
vision that  substitutes,  not  liable  for  duty,  might  be  received 
for  such  as  were,  with  a  knowledge  by  the  law-maker,  that 
the  substitution  would  be  attended  with  heavy  sacrifice  of 
money,  is  equivalent  to  a  declaration  by  the  Government, 
that  those  who  would  buy  substitutes  should  be  discharged 
from  services  for  such  time  as  the  substitute  should  be  put  in. 

4 


50  IN  THE  SUPBEME  COURT. 

In  the  matter  of  Bryan. 

Did  not  the  Government  intend  to  pledge  its  faith  to  this  ex- 
tent, or  allow  it  to  be  so  understood  ?  It  is  certain  that  many 
arts  were  resorted  to  to  make  the  law  less  distasteful,  as  may 
be  seen  in  sections  1,  4,  6,  7,  8,  9,  13.  Government,  under  the 
orders  it  established,  was  a  great  gainer  by  substitution.  It 
took  under  order  58,  all  conscripts,  though  "  not  fit  for  all 
military  duty,"  that  were  able  to  serve  for  nursing  and  simi- 
lar duties :  maimed  men  were  taken ;  but  none  such  were 
allowed  to  become  substitutes — none,  unless  they  were  "sound 
and  in  all  respects  fit  for  military  service."  The  fact  is  noto- 
rious, that  a  sound  man  is  never  wittingly  exchanged  for  a 
worse  one,  though  liable  to  duty  :  the  bargain  is  always  the 
other  way — this  practice  of  considering  every  man,  not  bed- 
ridden, fit  for  service,  has  driven  thousands  of  invalids  to  re- 
sort to  substitution  to  save  themselves  from  death  by  the 
hardships  of  the  service.  But  it  is  said  that  Congress  could 
have  intended  no  such  bargain,  because  it  was  expected  that 
from  the  boasts  of  the  enemy,  the  country  would  need  every 
available  man.  This  was  not  the  expectation- — neither  the 
press  nor  public  councils  held  out  any  such  idea.  We  were 
constantly  told  that  peace  was  but  two  or  three  months  ahead; 
and  the  law  itself  stopping  short  by  ten  years  of  the  ordinary 
military  age,  ignores  any  such  idea.  It  is  yet  five  years  short 
of  the  allowed  extent.  It  was  at  least  reasonable  for  him  who 
was  invited  to  the  privilege  of  putting  in  a  substitute,  to  ex- 
pect that,  if  the  age  of  conscription  were  extended,  those  who 
were  neither  in  the  service,  nor  had  hired  substitutes,  would 
be  first  called.  It  had  been  mere  mockery  to  allow  so  short 
a  respite  to  the  conscript  after  prescribing  to  him  that  his 
substitute  must  be  put  in  (and  of  course  be  paid)  for  three 
years  or  the  war.  Did  not  good  faith  require  of  the  Govern- 
ment some  distinct  expression  if  such  had  not  been  its  mean- 
ing. 

It  is  suggested  that  if  such  had  been  its  purpose,  Congress 
was  incompetent  to  pledge  the  national  faith  for  its  sanction, 
and  that  a  succeeding  Congress  might  in  good  faith  annul  the 
bargain.    If  Congress  may  make  war,  it  may  certainly,  with- 


JUNE  TEftM,  1863,  51 

In  the  matter  of  Bryan. 

in  the  scope  of  its  powers,  determine  the  mode  of  raising  ar- 
mies. It  may  enlist  upon  what  bounty,  whether  in  money  or 
privileges,  it  may  please.  It  may  borrow  money  and  pledge 
the  entire  revenue  to  fill  the  treasury.  It  may  procure  the 
services  of  the  citizen  for  two  years  by  agreeing  to  discharge 
him  for  the  third.  It  may  grant  or  withhold  supplies  both  of 
men  and  money.  In  a  word,  it  can  stop  a  war — and  it  is  no 
answer  that  another  Congress  would  not  be  bound,  because  of 
the  disastrous  consequences  of  the  acts  of  the  previous  one. 
A  nation's  faith  is,  to  a  great  extent,  its  wealth ;  and  it  will 
be  worthless,  if,  after  pledging  it,  the  public  authority  shall 
violate  it,  because  the  bargain  is  hard.  Such  a  nation  could 
not  be  trusted  in  war.  Its  soldiers  taken  in  battle  would  be 
put  to  the  sword,  because  it  kept  no  faith.  I  admit  a  differ- 
ence in  a  bargain  between  a  nation  and  its  citizens,  and  a  bar- 
gain between  two  nations.  The  former  may  be  violated  if 
necessary  in  a  very  urgent  case,  upon  making  compensation ; 
the  latter  must  be  submitted  to,  if  fairly  made.  But  no  peo- 
ple could  either  love  or  respect  its  rulers  who  should  lure 
them  to  action  by  promises  and  break  them  without  over- 
whelmning  necessity,  or  liberal  compensation. 

2.  But  if  there  be  no  contract,  only  those  who,  when  the 
calls  are  made,  are  not  "  legally  exempted  from  military  ser- 
vice,^ can  be  called  into  service.  JSFow,  who,  on  27th  Sep- 
tember, 1862,  and  before  the  passage  of  the  act  of  that 
date,  were  "  legally  exempted  ?"  To  determine  this  question, 
we  must  look  to  previous  legislation.  The  act  of  16th  April,  1S62, 
sec.  9,  exempted  all  conscripts  between  18  and  35  years  of  age, 
who  might  put  in  substitutes  "  not  liable  for  duty,"  under  that 
act.  The  act  of  21st  April,  1862,  exempted  (among  other  persons) 
mail  carriers  and  ferrymen.  Though  exempted  by  different 
enactments,  the  exemption  of  each  was  secured  by  lavj-— and 
neither  of  the  persons,  thus  exempted,  could  be  put  into  ser- 
vice so  long  as  this  legal  right  of  exemption  continued^  On 
this  footing,  they  stood  alike  on  27th  September,  1862,  when 
the  second  conscript  act  was  passed,  which  subjects  to  con- 
scription all  persons  between  35  and  45  years  of  age,  who  are 


52  IN  THE  SUPREME  COURT. 

In  the  matter  of  Bryan. 

not  at  the  times  of  the  calls  for  them  "  legally  exempted  from 
military  service."  It  is  certain  that  the  mail  carrier  and  fer- 
ryman did  not  become  liable  to  be  conscripted  under  this  act. 
The  only  reason  why  they  did  not,  is  because  they. were  "le- 
gally exempted  from  military  service"  under  a  law  still  in 
force.  This  being  granted,  how  then  does  the  person  who 
had  put  in  a  substitute  become  liable?  The  law  of  27th 
Sept.  1862,  which  extended  the  age  to  45  }7ears,  and  did 
but  amend  the  law  of  April,  1862,  which  had  given  exemp- 
tion on  putting  in  a  substitute,  did  not  profess  to  take  away 
any  privilege  of  those  who,  before  that  time,  had  been  exempt- 
ed by  law.  Now,  if  the  mail  carrier  and  ferryman,  between 
those  ages,  were  still  excused,  it  was-  because  they  had  been 
legally  exempted  by  an  act  which  had  not  been  repealed ;; 
and  in  like  manner  h-ad  been  exempted,  the  principal  putting 
in  a  substitute,  by  virtue  also  of  an  act  which  had  not  been 
repealed.  In  a  word,  did  the  act  of  September  27,  intend 
to  look  to  the  then  status  of  those  who  had  been  "  legally  ex- 
empted," or  to  some  new  status  introduced  in  the  act  ?  The 
only  term  used  concerning  exemption  evidently  has  refer- 
ence to  an  existing  status.,  and  not  to  one  then  introduced. — 
In  regard  to  mail  carriers  and  ferrymen,  it  is  manifest  that 
the  act  designed,  to  look  to  a  previously  created  status  /  and 
by  what  rule  of  legal  interpretation  can  wTe  exclude  other  per- 
sons having  a  like  previously  created  legal  exemption,  unless 
some  other  words  maybe  found  indicating  that  purpose?: 
There  are  none. 

3.  But  it  is  said,  that  though  such  be  the  proper  interpre- 
tation of  the  act  per  se,  yet  the  Secretary  at  War  is  authorised 
to  regulate  substitution  as  he  may  deem  advisable  ;  and  I  am 
referred  to  section  9,  of  the  conscript  act  of  16th  April,  where- 
in it  is  provided  "  that  persons  not  liable  to  duty,  may  be  re- 
ceived as  substitutes  for  those  who  are,  under  such  regula- 
tions as.  may  be  prescribed  by  the  Secretary  of  War."  On 
the  19th  May,  1862,  the  Secretary  published  certain  regula- 
tions, (General  orders  No.  37,)  among  which,  by  paragraph  4, 
it  is  provided,  that  the  exemption  gained  by  putting  in  a  sub- 


JUNE  TEffcM,  1863.  53 


la  the  matter  of  Bryan. 


stitute  shall  be  "  valid  only  so  long  as  the  said  substitute  is 
legally  exempted."  I  have  endeavored  to  show  that  the  ex- 
emption, by  the  act,  is  for  three  years  or  the  wai^  without  re- 
ference to  the  time  when,  if  out  of  serviee,  the  substitute 
would  become  liable.  It  is  contended,  that  however  right, 
abstractedly  considered,  this  interpretation  may  be,  yet,  the 
Secretary  is  invested  with  a  power  over  substitution,  which. 
•enables  him,  by  regulations,  to  modify  the  legal  interpretation 
of  the  act  itself,  and  that  he  may  shorten  or  prolong  the  time 
•of  exemption  by  substitution.  If  so,  then  he  is  invested  with 
a  vigorous  faculty  of  legislation  indeed.  A  faculty  to  make  a 
regulation  inconsistent  with  the  very  law  which  empowers 
him  to  regulate  !  The  right  in  time  of  war  to  substitute  an- 
other in  the,  place  of  the  drafted  soldier  has  been  known  to, 
and  exercised  by,  oftr  people  at  all  times ;  and  when  it  was 
provided  that  "persons  not  liable  to  duty  may  be  received 
as  substitutes,"  it  was  intended  to  confer  a  privilege  on  the  con- 
script, and  not  to  allow  to  the  Secretary  of  War  a  pure  dis- 
cretion to  receive  or  not,  as  he  might  please.  Under  the 
clause,  he  is  hound  to  receive  in  substitution  "  persons  not 
liable  for  duty,"  and  the  only  discretion  conferred  on  him,  is 
to  regulate  the  mode  and  manner  by  which  they  shall  be  re- 
ceived. He  has  no  power  to  allow  one  substitute  for  a  month, 
another  for  a  year,  and  third,  for  the  war.  When  substitutes 
are  received,  they  are  to  b&full  substitutes,  and  are  to  occupy 
the  entire  place  of  the  principal.  The  Secretary  cannot  halve 
the  substitution.  There  has  been,  heretofore,  no  such  substi- 
tution, though,  at  all  times,  it  is  necessary  to  ascertain  his  fit- 
ness, and  regulate  the  mode  of  receiving  the  substitute.  The 
law,  itself,  selects  those  who  are  fit  for  substitutes,  by  declar- 
ing that  they  are  "  persons  not  liable  to  duty,"  and,  submits  to 
the  Secretary  only  the  power  to  provide  for  the  mode  and  man- 
ner of  receiving  them  into  the  service.  It  may  be  regarded  as 
quite  clear,  that  the  act  did  contemplate  as  fit  substitutes  all 
such  as  were  citizens  or  domiciled  residents,  and  were  able  to 
bear  the  fatigues  of  war,  and  who  might  lawfully  volunteer 
m  the  service.     And  it  is  equally  clear,  that  while  the  persons 


54=  EN  THE  SUPEEME  COTJET. 

In  the  matter  of  Bryan. 

are  such  as  are  "not liable  to  duty,"  they  must,  in  the  nature 
of  things,  be  fit  for  duty.  It  is  asked,  why  is  not  the  principal 
also  discharged  when  a  minor  under  18  is  the  substitute?  I 
think  there  is  a  manifest  difference  in  the  cases.  I  do  not 
place  it  on  the  recent  regulations  of  the  Secretary  of  War. — 
In  the  first  place,  at  the  time  of  the  passage  of  the  conscript 
act,  it  was  an  army  regulation  that  persons  under  the  age  of 
eighteen,  were  not  receivable  into  the  army  as  recruits;  (see 
Army  Eegulations  of  Confederate  States,  sec.  1299,  and  Act 
of  Congress  6th  March,  1861.)  This  was  an  old  regulation 
of  the  United  States,  and  became  that  of  the  Confederate 
States,  at  the  first  Congress.  It  is  a  fair  inference  that  such 
persons  were  deemed  legally  unfit,  both  separately,. and  as  a 
class,  for  any  military  service.  Such  persons,  besides  be- 
ing unfit,  by  reason  of  their  tender  years,  had  no  disposi- 
tion of  their  own  time — they  were  bound  to  serve  their  fa- 
thers till  they  might  be  required  to  serve  their  country.  In  the 
next  place,  as  the  act  of  April  makes  all  persons  conscrips  as 
they  shall  arrive  to  the  age  of  eighteen  years  and  subject  to 
the  call  of  the  President  as  they  come  to  that  age,  they  have 
no  right  to  evade  that  service  by  previously  undertaking  a 
service  for  an  individual,  inconsistent  with  this  foreordained 
public  duty,  nor  had  any  person  a  right,  for  his  own  benefit, 
to  contract  with  them  so  as  to  produce  that  result  in  the  face 
of  a  known  law.  The  minor  coming  to  the  age  of  eighteen  is 
quasi  under  the  law  prospectively.  But  there  was  no  law 
which  affected  the  man  over  thirty-five — nothing  less  than  a 
new  law  could  affect  him  :  and  his  rights  and  duties  could  not 
be  predicated  on  a  law  which  might  or  might  not  be  made. 

Mr.  Strong,  with  whom  was  Mr.  Bragg,  contra,  argued  as 
follows  : 

Is  a  conscript  under  the  Act  of  Congress  of  April  16th, 
A.  D.  1862,  who  was  discharged  upon  furnishing  a  substitute, 
between  the  ages  of  thirty-five  and  forty,  made  liable  to  mili- 
tary duty  by  virtue  of  the  second  conscription  act  of  Septem- 
ber 27th,  1862?  It  is  maintained  by  the  Government,  that- 
he  does  thus  become  liable.     The  transaction  is  no  contract, 


JUKE  TERM,  1863.  55 

In  the  matter  of  Bryan. 

but  the  mere  grant  of  an  indulgence,  whereby  the  party  is, 
for  his  own  comfort  solely,  relieved  from  a  hard  service. — 
There  was  no  possible  inducement, to  the  Government  for  suck 
a  contract— no  consideration.  The  services  of  the  substitute 
were  at  the  command  of  the  Government,  as  much  as  those 
of  the  principal;  and  Congress  by  taking  primarily  the  prin- 
cipal, showed  its  preference  for  him  as  a  soldier,  and  for  the 
substitute  as  a  citizen.  So,  there  was  a  positive  disadvantage 
to  the  Government.  The  labor  lost  and  money  spent  in  pro- 
curing the  substitute,  were  not  at  the  request  of  the  Govern- 
ment, and  can,  therefore,  furnish  no  consideration  for  a  con- 
tract. 

It  cannot  be  supposed  that  Congress  intended,  without  pro- 
curing thereby  the  very  slightest  advantage  to  the  Govern- 
ment, to  place  it  in  the  power  of  all  men  between  the  ages  of 
eighteen  and  thirty-five  years/' to  put  themselves  beyond  the 
reach  of  their  country's  call,  during  the  war;  at  a  time  too, 
when  the  enemy  were  declaring  that  our  subjugation  was  a 
simple  question  of  arithmetic,  and  depended  upon  the  process 
of  giving  man  for  man,  to  death,  or  more  if  necessary,  till  our 
last  man  was  gone.  Such  legislation  would  have  been  an  act 
of  madness  unparalleled  in  the  annals  of  time! 

Congress  had  no  power,  under  the  constitution,  to  make 
such  a  contract.  The.  right  to  call  into  service  the  military 
strength  of  the  country,  being  a  sacred  trust,  confided  for  the 
benefit  of  all,  cannot  he  alienated  !  .  If  so,  one  Congress  could 
place  it  out  of  the  power  of  a  succeeding  Congress  to  raise  an 
army,  and  thereby  that  clause  of  the  Constitution,  giving 
Congress  the  power  to  raise  armies  be  defeated.  Congress 
cannot  place,  or  allow  to  be  placed,  the  whole  fighting  popu- 
lation, on  the  footing  (for  this  purpose  at  least)  of  foreigners. 

Mr.  Moore  contended,  that  from  this  conclusion,  it  would 
follow,  that  Congress  would  have  no  right  to  pledge  the  fu- 
ture revenue  of  the  country  so  as  to  bind  its  successors.  The 
cases  are  not  analogous.  It  would  be  an  analogous  case 
should  Congress  attempt  to  make  a  contract  with  the  citizen, 


'A 

56  IS  THE  SUPKEME  COUKT. 

Iii  the  matter  of  Bryan, 

that  if  he  would  pay  a  certain  tax  now,  he  should  never  after- 
wards be  taxed  at  all. 

He  contended^  that  it  would  also  follow  that  no  binding 
contract  could  be  made  that  an  array  in  the  power  of  its  ad- 
versary should  fight  no  more  during  the  war,  and  that  it 
might,  therefore,  have  to  be  cut  to  pieces !  The  difference  in 
the  two  cases  is,  that  under  the  war-making  power,  as  inter- 
preted by  all  writers  upon  international  law,  all  contracts 
with  the  enemy,  respecting  the  conduct  of  the  war,  are  with- 
in the  scope  of  the  powers  of  the  Government.  The  point 
here,  is,  that  the  contract  is  not  within  that  scope. 

It  was  further  contended,  that  it  would  follow  that  Congress 
and  the  people  could  not  stop  this  war.  This  is  too  clear  a 
non  sequitur  to  require  any  reply. 

Whatever  the  name  or  nature  of  the  arrangement  with  the 
principal,  a  sense  of  respect  for  Congress  forces  us  to  the  con- 
clusion that  this  condition  was  implied  to  wit:  that  the  sub- 
stitute should  fill  the  place  of  his  principal,  and  thus  relieve 
him,  till  his  own  services  became  necessary,  at  which  time  he 
must  take  his  own  place,  and  the  principal  his.  That  hi*  ser- 
vices have  thus  become  necessaiw,  is  shown  by  the  act  of  the 
27th  of  September,  1862. 

It  is  admitted,  and  is  considered  settled,  that  the  principal 
does  become  liable  when  his  minor  substitute  reaches  the  age 
of  eighteen  years.  Yet,  no  consideration  affects  this  case, 
which  does  not  equally  affect  the  other.  In  this,  it  is  urged 
that  the  principal  acted  in  view  of  the  liability  of  his  substi- 
tute, under  the  act  of  Congress,  upon  reaching  the  said  age  of 
eighteen.  In  the  other,  it  may  be  equally  well  urged  that  he 
acted  in  view  of  the  liability  of  his  substitute,  under  the  con- 
stitution, a  yet  higher  law,  upon  an  expression  to  that  effect 
of  the  legislative  will.  How  is  it  probable  that  the  minor  of 
sixteen  years,  would  become  liable?  Was  it  not,  under  all 
the  circumstances,  equally  probable,  that  he  of  thirty-six 
years,  would  also  become  liable  ?  What  then,  is  the  differ- 
ence between  him  of  sixteen,  and  him  of  thirty-six? 

It  is  objected  in  this  case,  that  it  would  be  absurd  to  sup- 


JUNE  TEEM,  1863.  .57 

In  the  matter  of  Bryan. 

pose  that  Congress  intended  the  President  "  to  call  out  and 
place  in  the  military  service,"  those  who  had  been  already 
called  out,  and  were  already  in  service.  Is  the  supposition 
any  the  less  absurd  when  applied  to  the  youth,  who,  upon 
reaching  eighteen,  is  already  in  the  service.  It  is  apparent 
from  sections  one,  three. and  thirteen,  of  the  act  of  April  16th, 
that  Congress  intended  the  language  above  quoted  to  apply 
to  and  embrace  those  alreadjr  in  the  service — and  that  too, 
for  a  period  longer  than  twelve  months.  The  second  sentence 
of  the  first  section  of  the  act,  referring  to  the  words  above 
quoted,  is  as  follows :  "  All  of  the  persons  aforesaid,  who 
are  now  in  the  armies  of  the  Confederacy,  and  whose  term  of 
service  will  expire  before  the  end  of  the  ivar"  &c,  showing 
that  some  were  intended  to  be  embraced  whose  term  of  ser- 
vice would  not  expire  before  the  end  of  the  war.  If  persons 
already  in  service  are  embraced  in  the  act  of  April,  they  must 
be  also  in  that  of  September,  since  their  language  is  identical. 

It  was  objected  further,  that  it  could  not  have  been  intend- 
ed to  send  soldiers  already  in  service  to  camps  of  instruction, 
and  to  use  them  for  filling  to  the  maximum  other  companies 
and  regiments.  But  these  provisions  only  apply  to  those  who 
are  to  be  enrolled,  and  those  only  are  to  be  enrolled  who  have 
not  been  in  service;  see  sections  4  and  6  of  the  act  of  April  13th, 
and  the  act  of  October  8th,  1862,  establishing  camps  of  in- 
struction. 

It  is  objected  further,  that  if  any  bounty  or  privilege  had 
been  given  to  those  called  out  under  this  act,  no  one  would 
suppose,  for  a  moment,  that  the  substitute  of  thirty-six  would 
be  entitled  to  them  ?  Why  then  suppose  that  the  substitute 
of  sixteen  would  be,  on  reaching  eighteen  %  But,  even  admit- 
ting that  they  were  embraced  in  the  act,  and  had  been  so  ex- 
pressly declared,  they  would  not  be  entitled  to  the  bounty 
or  privilege,  because  not  within  the  spirit  of  that  portion  of 
the  act,  giving  them. 

It  is  argued  that  the  regulation  of  the  War  Department  di- 
recting soldiers  in  the  service,  over  thirty -five  years  of  age  not  to 
be  discharged,  is  founded  upon  the  view  that  they  are  not  em- 


58  IN  THE  SUPKEME  COTJET. 

In  the  matter  of  Bryan. 

braced  within  the  body  of  the  act.  This  is  an  error.  It  wa& 
founded  upon  that  portion  of  the  act  which  relates  to  this  spe- 
cial subject  matter:  "All  persons  *  *  *  over  the  age 
of  thirty-five,  who  are  now  enrolled,  &c,  in  regiments,  &c, 
hereafter  to  be  re-organised,  &c,  shall  be  required  "  to  remain 
in  service  for  ninety  days,  implying  that  at  the  end  of  that 
time  they  are  to  be  discharged  ;  act  of' 16th  of  April,  sec.  1. 
Paragraph  4,  general  orders  for  1862,  No.  37,  dated  May  19th, 
respecting  substitutes,  is  as  follows :  "  the  exemption  is  valid 
only  so  long  as  the  substitute  is  legalhv  exempt;"  that  is,  so 
long  as  he  would,  in  his  own  place  and  right,  have  been 
exempt,  had  he  not  become  a  substitute,  because  he  ceases  to 
be  exempt  at  once,  as  occupying  the  place  of  another.  This 
order  applies  to  the  case  before  us,  in  which  the  discharge 
was  given,  in  July,  1862,  and  is  expressed  to  be  in  accordance 
with  "the  regulations  on  the  subject."  This  regulation, then, 
is  as  much  a  part  of  the  discharge  as  if  it  had  been  written 
out  in  full  therein.  An  admission  that  the  regulation  being 
matter  of  legislation  is  void,  would  not  vary  this  conclusion. 
The  principle  would  be  same  as  if  the  discharge  had  been  for 
a  specific  time,  say  six  months,  and  in  neither  case,  could  the 
party  get  more  than  was  promised  him,  and  than  he  agreed 
to  receive. 

It  is  urged  that  the  Secretary  of  War  can  only  make  regu- 
lations as  to  the  time,  manner,  &c,  of  receiving  substitutes— - 
that  the  regulation  in  question,  is  a  matter  of  legislation,  and, 
conflicting  with  that  provision  of  the  constitution  which  de- 
clares that  the  Legislative,  Executive  and  Judicial  Depart- 
ments shall  be  kept  distinct,  is  void.  But,  suppose  that  Con- 
gress had,  itself,  regulated  the  time,  manner,  &c,  of  receiving 
substituies,  would  not  that  have  been  matter  of  legislation  ? 
And  would  it  be  any  the  less  so,  because  it  was  done  through 
its  agent,  the  Secretary  of  War  ?  In  this  view,  all  the  regn- 
tions  on  the  subject,  are  void,  and  so  no  one  is  entitled  to  dis- 
charge. But,  that  the  Judicial,  and  Legislative,  and  Executive 
powers  (of  course)  may  be  exercised  by  the  same  subordinate 
agents,  see  Thompson  v.  Floyd,  2  Jones'  Rep.  313. 


JUNE  TEEM,  1863.  59 


In  the  matter  of  Bryan. 

Upon  any  other  construction  than  the  one  contended  for 
by  the  Government,  Congress,  in  passing  the  second  act  of 
conscription,  legislated  in  the  darlc,  as  to  how  many  they  were 
calling  into  service ;  a  conclusion  forbidden  by  a  proper  re- 
spect for  that  enlightened  body. 

Pearson,  0.  J.  Eor  the  reasons  given  by  me  in  the  mat- 
ter of  Irvin  and  in  the  matter  of  Meroney,  I  am  of  opinion  that 
the  petitioner  is  entitled  to  exemption.  In  those  cases,  (see 
note*)  I  considered  the  subject  fully,  although  I  was  not  aid- 

*Note — IN  THE  MATTER  OF  IRVIN. 

The  facts  are,  John  N.  Irvin,  being  liable  as  a  conscript  under  the 
act  of  April  1862,  offered  in  July  1862,  one  Gephart  as  his  substitute;  Gep- 
hart  was  36  years  of  age,  and  in  all  respects  a  fit  and  sufficient  substitute  for 
the  war,  and  was  accepted  by  Maj.  Mallett,  commandant  of  conscripts,  who 
thereupon  gave  Irvin  an  absolute  discharge. 

The  petitioner  avers  he  is  advised  that  the  conscription  acts  are  unconstitu- 
tional, but  it  is  not  necessary  for  the  purpose  of  this  case  to  decide  the  ques- 
tion. 

It  is  admitted,  that  under  the  regulations  of  the  War  Department,  Major 
Mallett  had  full  authority  to  accept  substitutes,  and  give  discharges  ;  but  it  is 
insisted  that  Irvin's  discharge  was  afterwards,  by  the  action  of  Congress,  ren- 
dered of  no  effect ;  for  the  act  of  September,  1862,  makes  all  persons  be- 
tween the  ages  of  35  and  45,  liable  as  conscripts;  so  Gephart  became  liable  as 
a  conscript,  by  reason  whereof  he  was  no  longer  a  sufficient  substitute ;  and 
thus  Irvin's  discharge  had  no  further  effect.  If  one,  who  is  at  the  time  liable 
as  a  conscript,  should  be  offered  and  accepted  as  a  substitute,  it  may  be  con- 
ceded the  discharge,  obtained  in  that  way,  would  be  void,  because  no  consid- 
eration is  received  by  the  government,  and  the  officer  exceeds  his  authority. 
So,  if  after  the  conscription  act  of  April,  one  who  is  under  18  years  of  age,  is 
offered  and  accepted  as  a  substitute,  it  may  be  conceded  that  the  discharge 
would  only  be  of  effect  until  the  substitute  arrives  at  the  age  of  18  ;  for  as  it 
was  known  to  the  parties  that  the  substitute  himself  would  become  liable  at  that 
date  under  a  law  then  in  force,  it  will  be  presumed  that  the  contract  and  dis- 
charge were  made  in  reference  to  that  state  of  things,  and  after  the  substi- 
tute arrives  at  the  age  of  18,  the  consideration  fails,  and  the  officer  had  no 
authority  to  grant  a  discharge  for  a  longer  time. 

But,  in  our  case,  there  was,  at  the  time,  no  law  in  force  under  which  it  was 
known  to  the  parties  that  the  substitute  would  afterwards  be  himself  liable  as 
a  conscript ;  on  the  contrary,  he  was  in  all  respects  a  fit  and  sufficient  sub- 
stitute for  the  war,  and  was  accepted  as  such,  and  an  absolute  discharge  giv- 


IN  THE  SUPREME  COURT. 


In  the  matter  of  Bryan. 


ed  by  the  argument  of  counsel.  The  subject  has  been  fully 
argued  before  the  Court,  and  I  have  reviewed  ray  opinion 
previously  given,  with  an  anxious  wish  to  decide  the  question 

en  ;  so  there  was  full  consideration  received  by  the  government,  and  full  au- 
thority on  the  part  of  the  officer.  The  question  is,  does  the  subsequent  ac- 
tion of  Congress,  to  wit:  the  act  of  September,  1802,  by  its  proper  construc- 
tion and  legal  effect,  repudiate  and  make  void  the  contract  and  discharge? 

The  construction  of  acts  of  Congress,  so  far  as  the  rights  of  the  citizens,  as 
distinguished  from  the  military  regulations,  are  concerned,  is  matter  for  the 
courts. 

Whether  Congress  has  power  to  pass  an  act  expressly  making  liable  to 
conscription  persons  who  have  heretofore  furnished  substitutes,  and  received 
an  absolute  discharge,  is  a  question  not  now  presented,  and  one,  which  I 
trust,  public  necessity  never  will  cause  to  be  presented,  as  it  would  violate 
natural  justice  and  shock  the  moral  sense. 

In  my  opinion,  the  act  of  September,  1862,  by  its  proper  construction,  does 
not  embrace  men  who  were  before  bound,  as  substitutes,  to  serve  during  the 
war.  It  is  true,  the  act,  in  general  words,  gives  the  President  power  to  call 
into  military  service  all  white  men,  residents,  &c,  between  the  ages  of  35 
and  45  ;  but  this  manifestly  does  not  include  men  who  are  already  in  milita- 
ry service  for  the  war,  for  this  plain  reason  :  there  was  no  occasion  to  include 
them,  they  were  bound  before;  and  the  true  meaning  and  intent  of  the  act  is 
to  increase  the  army  by  calling  into  service  men  who  were  not  before  liable. 
Suppose  the  act  contained  a  provision  giving  a  bounty  of  $500  to  all  men 
called  into  service  under  its  operation,  or  providing  that  such  conscripts  should 
not  be  ordered  out  of  their  own  respective  States,  would  it  be  imagined  that 
men  who  had  previously  volunteered  for  the  war,  or  were  substitutes  for  the 
war,  would  be  entitled  to  the  extra  bounty,  or  to  the  special  privilege  of  re- 
maining in  their  own  States  ?  Sertainly  not,  because  there  was  no  need  of 
legislation  in  order  to  make  soldiers  of  them. 

A  decent  respect  for  our  law-makers  forbids  the  courts  from  adopting  a 
construction  which  leads  to  the  conclusion  that  it  was  the  intention,  by  the  use 
of  general  words,  to  include  within  the  operation  of  the  act,  substitutes  who 
were  already  bound  for  the  war ;  not  for  the  purpose  of  affecting  them,  but 
for  the  indirect  purpose  of  reaching  parties  who  had  furnished  substitutes,  and 
in  that,  was  asserting  a  power,  which  is  at  least  doubtful,  and  certainly  'in- 
volves repudiation,  and  a  want  of  good  faith. 

As  the  conscription  act  does  not  include  substitutes,  the  conclusion  that 
G-ephart  is  no  longer  sufficient  as  a  substitute,  and  that  Irvin's  discharge  is  of 
no  further  effect,  fails. 

It  is  considered  by  me  that  John  K  Irvin  be  forthwith  discharged  with 
liberty  to  go  wheresoever  he  will.  * 


JUNE  TEEM,  186H.  61 

In  the  matter  of  Bryan. 

according  to  the  proper  construction  of  the  act  of  Congress, 
The  argument  and  my  consultation  with  Judge  Battle,  con- 
firms my  judgment  as  to  the  correctness  of  the  views  taken: 

It  is  further  considered3,that  the  costs  of  this  proceeding,  allowed  by  law, 
be  paid  by  James  Irviri,  (the  officer  arresting  the  petitioner,)  to  be  taxed  by 
the  clerk  of  the  superior  court  of  Rockingham  county,'  according  to  the  stat- 
ute in  such  cases  made  and  provided. 

The  clerk  will  file  the  papers  in  this  proceeding  among  the  papers  of  his 
office.  R.  M.  PEARSON,  Ch,  J.  S.  C. 

At  Richmond  Hill,  July  9,  1863*, 

*IN   THE    MATTER   Off   MERONEY. 

The  facts  of  this  case  bring  it  within  the  decision  in  "The  matter  of  Irvin." 
That  decision  is  put  on  the  ground  that  the  Conscription  Act  of  Sept.,  1862, 
does  not  embrace  substitutes ;.  and  so  the  questions  growing  out  of  the  reg- 
ulations prescribed  by  the  War  Department,  "  where  a  substitute  becomes 
subject  to  military  service,  the  exemption  of  the  principal  shall  expire,"  was 
not  presented. 

It  seems  to  me  that  any  one  accustomed  to  judicial  investigation  cannot 
read  the  act  and  fail  to  come  to  the  conclusion  that  it  does  not  embrace  vol- 
unteers and  substitutes  who  were  already  bound  to  serve  for  the  war;  a  dif- 
ferent construction  is  excluded  by  the  words  used,  and  is  inconsistent  and  re- 
pugnant to  its  provisions. 

The  President  is  authorized  ',  to  call  out  and  place  in  military  service  all 
white  men,  &c."  The  words  ,!  call  out1"  and  u place  in  military  service"  are 
not  applicable  to  men  who  are  already  in  the  military  service  for  the  war;  no 
legislation  was  necessary  to*  make  soldiers  of  them.  If  only  a  part  is  called 
for,  provision  is  made  for  taking  "  those  who  are  between  the  age  of  thirty- 
five  and  any  other  age  less  than  forty-five;"  can  this  be  applicable  to  volun- 
teers and  substitutes  ?  It  is  further  provided,  that  "  those  called  out  under 
this  act,  and  the  act  to  which  it  is  an  amendment,  shall  be  first  and  immedi- 
ately ordered  to  fill  to  their  maximum  number  the  companies,  battalions,  &c.T 
from  the  respective  States,  &c,  the  surplus,  &c."  This  supposes  that  the  vol- 
unteers and  substitutes  composing  the  companies  are  to  remain  in  the  field,, 
and  the  companies  and  battalions  are  to  be  filled  up  by  those  who  are  order- 
ed into  service  under  the*  conscript  act. 

Again,  how  can  the  regulation  that  all  conscripts  are  to>  be-  sent  to  camps  of 
instruction  be  applicable  to  volunteers  and  substitutes  ?  Are  they  to  be  ta- 
ken from  the  army  and  sent  to  camps  of  instruction  ?  Certainly  not,  be- 
cause they  are  not  called  out  and  placed  in  the  military  service  under 
the  conscription  acts,  but  are  bound  for  the  war  by  the  force  of  the  original 
contracts  of  enlistment. 


. 


62  IN  THE  SUPREME  COURT. 

In  the  matter  of  Bryan. 

by  me  in  those  cases,  and  I  refer  to  the  opinions  filed  by  me 
as  the  ground  of  my  present  conclusion. 

I  am  informed  that,  soon  after  the  conscription  act  of  April,  a  regulation 
was  made  for  the  discharge  of  all  volunteers  for  the  war,  who  were  over  the 
age  of  thirty -five ;  and  under  it  many  were  discharged,  but  the  regulation 
was  revoked,  the  War  Department  becoming  satisfied  that  the  act  by  its  true 
construction  did  not  apply  to  men  who  were  bound  by  the  terms  of  enlist- 
ment to  serve  for  the  war.  This  is  the  same  construction  given  by  me  to  the 
act.  Under  it 'all  volunteers  and  substitutes,  whether  over  or  under  thirty- 
ty-five  or  forty-five,  are  to  continue  in  service,  because  they  are  not  embraced 
by  the  conscription  acts.  I  can  see  no  reason  why  this  construction  should 
not  be  followed  to  the  further  consequence,  that  as  substitutes  are  not  em^ 
braced  by  the  conscription  acts,  and  do  not  become  subject  to  military  ser* 
vice  as  conscripts,  the  fact  necessary  to  the  application  of  the  regulations 
of  the  War  Department,  does  not  exist)  consequently,  the  question  that  may 
grow  out  of  that  regulation,  is  not  presented*. 

It  is  said  the  arrest  of  Meroney  was  ordered  in  disregard  of  the  decision  in 
the  matter  of  Irvin,  because  the  Secretary  of  War  does  not  consider  the  con- 
struction given  to  the  conscription  act  of  September  "  a  sound  exposition  of 
the  act."  The  enquiry  naturally  suggests  itself,  who  made  the  Secretary  of 
War  a  judge  ?  He  is  not  made  so  by  the  constitution — Congress  has  no  pow- 
er to  make  him  a  judge,  and  has,  by  no  act,  signified  an  intention  to  do  so.— ^ 
It  is  true,  for  the  purpose  of  carrying  acts  of  Congress  into  effect,  the  Secre- 
tary of  War,  in  the  first  place,  puts  a  construction  on  them,  but  his  construc- 
tion must  be  subject  to  the  Judiciary,  otherwise,  our  form  of  government  is 
■subverted — the  constitutional  provision  by  which  the  Legislative,  Executive 
and  Judicial  departments  of  the  government  are  separate  and  distinct,  is  vio- 
lated, and  there  is  no  check  or  control  over  the  Executive. 

According  to  the  view  taken  by  me,  it  is  not  necessary,  for  the  purpose  of 
this  case,  to  decide  upon  the  legal  effect  of  the  regulations  prescribed  by  the 
Secretary  of  War  in  regard  to  receiving  substitutes,  but  as  those  regulations 
•are  relied  on  as  authorizing  the  arrest  of  the  petitioner,  it  is  proper  for  me  to 
say  that  many  objections,  entitled  to  consideration,  may  be  urged  to  the  pow- 
-er  of  the  Secretary  of  War,  to  make  the  regulations  in  question.  The  enact- 
ment under  which  it  is  assumed,  that  the  power  to  make  a  regulation  that 
"in  all  cases  where  a  substitute  becomes  subject  to  military  service,  the  dis- 
charge of  the  principal  shall  expire,"  comes  within  the  scope  of  the  power 
■confided  by  Congress,  in  the  8th  section  of  the  conscription  act  of  April, 
1862,  in  these  words :  Persons  not  liable  for  duty  may  be  received  as  sub- 
stitutes for  those  who  are,  under  such  regulations  as  may  be  prescribed  tyj  the 
•Secretary  of  V/ar." 

The  obvious  'construction  of  this  section  seems  to  be— substitutes  may  be 


JUNE  TERM,  1863.  63 


In  the  matter  of  Bryan. 


Battle,  J.  My  opinion  concurs  with  that  of  the  Chief 
Justice,  that  a  person  liable  to  military  service  as  a  conscript 
under  the  act  of  April,  1862,  and  who,  by  virtue  of  the  9th 
section  of  that  act,  regularly  procured  a  discharge  by  fur- 
nishing a  proper  substitute,  cannot  be  again  enrolled  as  a 
conscript  under  the  amendatory  act  of  September,  1862, 
though  such  substitute  may  have  been,  when  received,  be- 
tween the  ages  of  thirty-five  and  forty-five  years. 

Cases  like  the  present,  have  been  so  often  and  so  recently 
decided  in  the  same  way  by  different  Judges,  and  the  rea- 
sons upon  which  the  decisions  were  founded,  have  become  so 
generally  known  through  the  medium  of  the  newspapers,  that 
it  is  unnecessary  for  me  to  do  more  than  to  state  briefly  my 
conclusions  on  the  subject. 

Persons  between  the  ages  of  eighteen  and  thirty-five  years, 

received  on  two  conditions,  one  implied,  to  wit:  The  substitute  must  be  an 
able  bodied  white  man,  fit  for  military  service  in  the  field ;  the  other  ex- 
pressed, to  wit :  The  substitute  must  be  a  person  who  is  not  liable  to  milita- 
ry duty  under  the  existing  law;  the  time,  place  and  manner  of  receiving  sub- 
stitutes, in  which  is  included  the  mode  of  deciding  whether  he  is  an  able  bo- 
died white  man  not  liable  to  duty,  to  be  regulated  by  rules  prescribed  by  the 
Secretary  of  War. 

If  the  regulation,  in  question,  be  confined  to  cases  where  the  substitute  be- 
ing under  the  age  of  18,  afterwards  arrives  at  that  age  and  becomes  liable  to 
military  duty,  it  accords  with  the  provision  of  the  act.  But,  if  it  be  extend- 
ed to  cases  where  the  substitute  is  not  at  the  date  of  the  contract  of  substitu- 
tution  liable  to  duty,  but  is  afterwards  made  liable  by  a  subsequent  act  of 
Congress,  it  departs  from,  and  goes  beyond  the  provisions  of  the  act  by  ad- 
ding a  third  condition,  and  the  power  to  do  so,  may  well  be  questioned;  es- 
pecially, where  the  regulation  as  well  as  the  act  of  Congress,  which  is  sup- 
posed to  give  it  application,  are  both  subsequent  to  the  contract  of  substitu- 
tion, and  the  discharge  is  absolute  on  its  face.  For  illustration,  suppose  a 
regulation  to  be  prescribed  that  in  all  cases  where  the  substitute  is  killed  or 
disabled,  or  where  he  deserts,  the  discharge  shall  expire,  which  stand  on  the 
same  footing,  with  the  regulation  that  the  discharge  shall  expire  if  the  sub- 
stitute is  made  liable  to  duty  by  a  subsequent  act  of  Congress,  for  all  add  a  third 
condition  to  the  two  imposed  by  the  act,  and  it  may  be  urged  against  them 
that  the  power  to  add  other  conditions  than  those  contained  in  the  enact- 
ment is  an  act  of  legislation,  which  Congress  has  no  right  to  delegate  to  a  de- 
partment of  the  Executive  branch  of  the  Government,  and  of  course  an  in- 


64  IN  THE  SUPREME  COURT. 

»  In  the  matter  of  Bryan. 

who  have  furnished  substitutes,  are  certainly  not  within  the 
meaning  of  the  Act  of  September,  1862,  because  that  act  is  a 
call,  in  express  terms,  for  persons  between  thirty-five  and  for- 
ty-five years  of  age.  Volunteers  and  substitutes  between  the 
latter  ages  are  not  embraced,  because,  being  already  in  the 
military  service,  they  cannot,  with  any  sort  of  propriety  of  lan- 
guage, be  said  to  be  called  out  and  placed  in  that  service,  nor  can 
it,  for  a  moment,  be  believed  that  such  volunteers  and  substitutes 
were  intended  to  be  taken  from  the  companies  and  regiments 
of  which  they  were  already  members  and  sent  off  to  fill  up 
other  "  companies,  battallions,  squadrons  and  regiments." 
Not  being  liable  to  be  called  into  service  under  this  act,  the 
substitutes  cannot  be  taken  awTay  from  their  principals  by 
force  of  the  act,  so  as  to  leave  the  latter  liable  again  under 
the  act  of  April,  1862,  as  having  no  person  substituted  and 
serving  in  their  stead.  If  such  principals  can  be  made  liable, 
then,  it  must  be  on  account  of  some  condition,  either  express- 
ed or  implied,  contained  in  the  discharges.  The  only  pre- 
tention to  do  so,  can  only  be  inferred  from  plain  and  direct  words,  and  the' 
words,  in  this  instance,  are  satisfied  by  the  construction  stated  above. 

The  same  question  of  construction  is  presented  in  the  matter  of  Iiuie,  from 
Cabarrus  county,  under  a  clause  in  the  exemption  act,  which  exempts  all 
persons  who  shall  be  held  unfit  for  military  service  in  the  field  under  rules 
io  he  prescribed  by  the  Secretary  of  War,  where  the  power  is  confined  to 
making  rules  to  ascertain  whether  the  person  is  or  is  not  fit  for  military  ser- 
vice in  the  field,  and  it  is  decided  that  the  act  does  not  confer  power  to  pre- 
scribe a  rule  under  which  a  citizen  may  be  taken  as  a  conscript,  although 
held  unfit  for  military  service  in  the  field,  on  the  ground,  that  he  may  answer 
some  purpose  in  the  hospitals,  &c.  These  instances  tend  to  show  the  wis- 
dom of  the  Constitution  in  hot  confiding  legislative,  judicial  and  executive- 
powers  to  any  one  department. 

I  am  of  opinion,  that  the  petitioner  is  entitled  to  exemption. 

Therefore,  it  is  considered  by  me,  that  P.  P.  Meroney,  be  forthwith  dis- 
charged, with  leave  to  go  wherever  he  will.  It  is  further  considered,  that 
the  costs  of  this  proceeding,  allowed  by  law,  to  be  taxed  by  the  clerk  of  the 
superior  court  of  Rowan  county,  according  to  the  act  of  the  General  Assem- 
bly, be  paid  by  Jesse  McLean,  (the  enrolling  officer.) 

The  clerk  will  file  the  papers  in  this  proceeding  among  the  papers  in  his 
offlce  and  give  copies.  R.  M.  PEARSON,  Ch.  J,  S.  C. 

At  Richmond  Hill,  July  4dh,  1863. 


JUNE  TERM,  1863.  65 

In  the  matter  of  Bryan, 

tense  for  an  express  condition  is  a  recital  in  their  discharges, 
that  they  are  given  under  the  orders  and  regulations  of  the 
War  Department.  The  regulations  of  that  department,  made 
at  the  time  when  the  discharges  were  granted,  were,  that  the 
substitute  should  not  be  liable  to  military  duty,  aitd  should 
be  found,  upon  an  examination  by  a  surgeon  or  assistant  sur- 
geon of  the  army,  to  be  sound,  and  in  all  respects  fit  for  mili- 
tary service;  see  Gneral  Order,  J\To.  2.9.  The  Secretary  of 
War  had  no  power  afterwards  to  make  an  order  to  have  a  re- 
trospective operation  to  affect  rights  already  attached.  The 
Legislature  may  pass  retrospective  laws,,  but  it  is  veiy  certain 
that  no  other  department  of  the  government  can.  I  con- 
clude, then,  that  the  discharges  were  not  subject  to  any  ex- 
press condition  of  the  kind,  contended'  for. 

Neither  can  any  such  condition  be  implied..  If  any  can  be 
implied,  it  can  only  be  upon  the  ground  that  the  conditional 
event  wa^  in  the  contemplation  of  the  parties  at  the  time  the 
discharge  was  given.  When  the  act  of  April,  1802,  gave  to 
conscripts  the  right  to  employ,  as  substitutes,  persons  not  lia- 
ble under  that  act  to.  perform  military  duty,  eo-uld  it  have  been 
contemplated  by  tlte  parties,  that  the  substitutes  were  to  be 
taken  away  by  another  act  of -Congress,  to  be  passed  in  a  few 
months  afterwards  I  Such  a  contingency  was  not  so  proba- 
ble as  that  the  substitute  might  desert,  or  die  of  disease,  or  be 
killed  in  battle,  and  yet  no  person  contends  that  these  contin- 
gencies should  be  regarded  as  conditions  implied  in  the  dis- 
charges. The  truth  is,  it  was  a  casus  omissus,  for  which 
Congress  neglected  to  provide,  and  it  is  too  late  for  the  War 
Department  to  attempt  to  remedy  the  mischief,  by  assuming 
to  legislate  under  the  name  of  regulations. 

Whether  Congress  lias  the  power  to  apply  a  remedy,  and 
whether  it  is  expedient  for  it  to  exercise  thai-  power,  if  it'  has 
it,  is  a  ijuestion  which  it  is  not  my  province  to  decide.  I  have 
discharged  the  only  duty  which  devolved  on  me  in  this  case, 
when  1  say,  1  think  that  die  petitioner  is  entitled  to  his  dis- 
charge. 

Per  Curiam,  Petitioner  discharged  with  costs  against  the 
officer  seizing  him. 
5 


66  IN  THE  SUPEEME  COUKT. 


In  the  matter  of  Guyer. 


In  the  matter  of  SOLOMON  N.  GUYER,  a  blacksmith. 

Soldiers  who  had  been  "  placed  in'  the  military  service  of  the  Confederate 
States  in  the  field,"  under  the  conscription  act  of  April,  1862,  and  were  so 
at  the  time  of  the  passage  of  the  exemption  act  of  11th  Oct.  1862,  were 
held  not  to  be  entitled  to  exemption  under  that  apt. 

But  where  a  blacksmith,  after  being  so  enrolled  was,  at  the  time  of  the  passage 
of  the  exemption  act,  not  so  placed  in  service  in  the  field,  but  was  detailed 
to  work  on  a  government  contract,  and  did  so  work  at  his  trade,  at  accus- 
tomed wages,  not  having  received  any  bounty,  pay,  rations  or  clothing,  up 
to  that  time,  it  was  held  that  he  was  entitled  to  exemption. 

The  petitioner  was  a  blacksmith,  and  had  worked  at  the 
trade  for  ten  years.  In  May,  1862,  he  quitted  his  shop  and  went 
to  work  in  the  armory  of  one  B.  Weathersbie,  who  was  en- 
gaged in  working  for  the  State  of  North  Carolina.  On  the 
8th  of  July,  he  was  enrolled  as  a  conscript,  and  shortly  there- 
after, was  detailed  at  Weathersbie's  request  to  work  in  his 
armory,  where  he  remained  until  the  contract  was  abandoned 
in  the  latter  part  of  March,  1863.  From  the  last  of  March 
to  19th  of  May,  the  petitioner  was  in  the  service  of  Capt. 
Coffin,  in  command  of  the  armory,  and  was  working  there  at 
his  trade  of  a  blacksmith ;  whence  he  was  directed  by  Coffin 
to  report  to  Lieut.  Anderson,  enrolling  officer  for  the  6th  Con- 
gressional District  of  North  Carolina,  which  he  did  as  soon 
as  he  could  find  him,  to  wit :  on  22d  May,  1863.  He  then 
filed  his  affidavits  for  exemption,  and  the  proofs  necessary  to 
sustain  his  application,  and  insisted  on  his  discharge,  but  this 
was  refused,  and  he  was  sent  to  the  camp  of  instruction  near 
Raleigh,  where  he  was  detained,  and  is  still  detained  by  the 
order  of  Col.  Peter  Mallett,  commander  of  the  said  camp  of 
instruction.  Up  to  the  time  of  the  arrival  of  petitioner  at  the 
camp,  he  had  never  received  any  bounty,  pay,  rations  or 
clothing :  but  since  then,  he  received  a  few  articles  of  cloth- 
ing, (which  are  specified  in  the  proofs,)  and  his  daily  subsist- 
ence.   For  these  causesj  he  applied  for  a  writ  of  habeas  cor- 


•    JUNE  TERM,  1863.  67 

In  the  matter  of  Guyer. 

pus  to  this  Court,  and  on  its  return,  with  the  cause  of  his  de- 
tention, the  cause  was  argued  by 

Gilmer  and  Scott,  for  the  petitioner. 

Strona,  Dist  Atto.  of  Confederate  States,  and  Bragg,  contra, 

Pearson,  C.  J.  For  the  reasons  given  by  me  in  my  opin- 
ion, In  the  matter  of  Nicholson,  the  Court  is  of  opinion  that 
the  exemption  act  of  October  11th,  1862,  applies  as  well  to 
the  conscription  act  of  April,  1862,  as  to  the  conscription  act 
of  September,  1862,  and  the  reasoning  in  Nicholson's  case  is 
now  referred  to  as  the  ground  of  the  decision  of  the  Court  on 
that  point.* 

*Nbie — IN  THE  MATTER  OF  NICHOLSON. 

The  facts  are :  Nicholson  is  thirty-three  years  of  age,  is  a  miller  and  mill- 
wright—skilled in  both  trades.  He  was  enrolled  as  a  conscript  8th  of  July, 
and  was  ordered  into  service  15th  of  July,  1862.  Between  the  8th  and  15th 
of  July,  he  applied  to  the  commandant  of  conscripts  for  a  special  exemption 
as  a  miller ;  this  was  refused;  he,  nevertheless,  failed  to  report,  and  continued 
at  his  trade  as  a  miller,  as  he  had  habitually  done  for  many  years  before.  In 
August,  1862,  he  went  into  the  armory  of  Lamb  &  Co.,  expecting  to  be  de- 
tailed, but  left  before  the  detail  was  made,  and  set  into  work  for  one  Ship- 
man,  as  a  mill-wright,  where  he  worked  until  the  1st  January,  1863,  when 
he  went  to  Virginia,  and  set  to  work  as  a  mill-wright  for  one  Lamb,  where 
he  remained  actually  employed  at  his  trade  until  March,  when,  coming  into 
this  State,  on  a  visit  to  his  family,  he  was  arrested  as  a  recusant  conscript. 
He  has  made  the  affidavit  as  required  by  the  exemption  act. 

In  the  matter  of  Mills,  a  shoemaker,  and  Angel,  a  wagonmaker,  I  deci- 
ded that  the  exemption  act,  October  11,  1862,  applied  as  well  to  the  con- 
scription act  of  April,  as  to  the  conscription  act  of  September.  I  see  no  rea- 
son to  change  my  opinion.  The  act  adds  to  the  list  of  exemptions  contained 
in  the  exemption  act  of  April — uses  general  words  applicable  to  both  con- 
scription acts,  "  all  shoemakers,  tanner^"  &c. — makes  no  distinction  be- 
tween persons  under  or  over  thirty-five,  and  repeals  the  former  exemption 
act,  showing  obviously  that  the  intention  was  in  reference  to  the  conscription 
act  of  April,  to  put  the  last  exemption  act  in  place  of  the  act  repealed,  and 
make  one  exemption  act  answer  for  both  conscription  acts.  If  this  be  not 
so,  there  are  no  exemptions  between  the  ages  of  eighteen  and  thirty- five,  and 
Governors  of  the  States,  Judges,  members  of  the  Legislature,  &c,  under  the 
age  of  thirty-five,  are  liable  as  conscripts ;  nay,  all  persons,  although  "  unfit 


68  IN  THE  SUPREME  COURT. 


In  the  matter  of  Guyer. 


In  regard  to  the  proper  construction  of  ihe  exemption  act, 
in  its  application  to  tlie  conscription  act  of  September,  1862, 
the  Court  is  not.  called  on  to  express  an  opinion,  as  there  is  no 
case  before  it,  which  involves  the  question. 

In  regard  to  the  proper  -construction  of  the  exemption  act, 
in  its  application  to  the  conscription  act  of  April,  1862,  the 
Court  is  of  opinion  thai  no  person  is  embraced  by  Jts  provi- 
sions so  as  to  be  entitled  to  exemption  as  a  shoemaker,,  tanner, 
&c.,  who  was,  at  the  date  of  its  passage,  in  the  army  as  a  sol- 

for  military  service,  by  reason  of  bodily  oriental  infirmity,"  are  liable  as 
conscripts,  if  under  the  age  of  thirty-five.  Such  a  construction  is  inadmissa- 
ble.  It  was  said  by  Mr.  Scott,  on  the  argument,  "This  difficulty  is  met  by 
the  power  given  to  the  President  to  make  special  exemptions."  But  it  could 
not  have  been  the  intention  to  make  Governors,  Judges  and  members  of  the 
Legislature  dependent  upon  the  pleasure  of  the  President;  the  object  was  to 
entitle  them  to  exemption,  by  law,  and  -not  by  favor. 

It  was  also  said,  if  the  act  applies  to  the  conscription  act  of  April,  it  must 
have  a  retro-active  effect,  aud  its  construction  will  present  many  difficulties. 
That  is  true;  but  when  the  clear  intention  of  the  law-makers  that  the  one 
act  should  apply  to  the  other,  it  becomes  the  duty  of  the  Judges  to  adopt 
such  a  construction  as  will  make  them  fit  in  the  best  way  they  can  be  put 
together. 

In  the  matter  of  Mills  and  Angel,  it  was  not  necessary  to  fix  on  the  time 
when  the  act  requires  the  party  to  be  actually  employed  at  his  trade,  for  they 
were  not  ordered  into  service  until  after  its  passage,  and  were,  without  de- 
fault, actually  employed  at  their  trades,  both  at  the  passage  of  the  act,  and 
when  ordered  into  service,  and  taking  either  date  as  "  the  time"  were  enti- 
tled to  exemption. 

In  this  case,  the  point  is  directly  presented.  If  "  the  time"  be  when  the 
party  is  ordered  into  service,  then  Nicholson  was  entitled  to  exemption,  and 
his  subsequent  conduct  in  keeping  out  of  the  way,  and  going  to  Virginia  to 
avoid  an  arrest,  does  not  prejudice  his  right,  it  being  induced  by  the  unau- 
thorized act  of  Government  officers  in  attempting  to  arrest  him,  although  the 
more  commendable  course  would  have  been  to  insist  openly  on  his  right.  If 
however,  "  the  time"  be  when  the  exemption  act  passed,  then  he  was  liable 
as  a  conscript,  and  although  actually  employed  at  his  trade,  cannot  claim  for 
that  reason,  to  stand  on  higher  ground,  in  this  respect,  than  if  he  had  been 
in  the  army,  because  of  the  maxim,  "no  man  shall  take  advantage  of  his  own 
wrong." 

The  clause,  under  consideration,  does  not  (except  indefinitely,  in  the  pro- 
viso,) refer  to  the  time  when  the  person  claiming  to  be  exempted,  must  be 


JUNE  TEUM,  1863.  69 


la- the  matter  of  Guyer. 


dier  ■  that  is,  who  had,  prior  to  the  passage  of  the  act,  been 
yplaccd  in  the  military  service  of  the  Confederate  States  in  the 
field.  But  that  all  '-shoemakers,  tanners,  &c,  under  the  age 
of  thirty-five  years,  who  had  not  been,  prior  to  the  passage  of 
the  act  "  placed  in  the  military  service  of  the  Confederate 
States  in  the  field,"  are  embraced  by  its  provisions,  and  are 
entitled  to  exemption,  whether  the  fact  of  the  party's  not  hav- 
ing been  placed  in  military  service  in  the  field,  be  owing  to 
his  not  having  arrived  at  the  age  of  eighteen  years,  or  to  his 

actually  employed  at  his  trade.  It  makes  no  exception  of  persons  then  in 
service,  or  who  had, been  ordered  into  service,  and  puts  the  stress  on  the  fact 
of  actual  employment.  It  is  in  these  words :  "  A  il  shoemakers,  tanners,  &c, 
skilled  and  actually  employed  in  the  said  trades,  habitually  engaged  in  work- 
ing for  the  public,  and  whilst  so  actually  employed,  provided,  said  persons 
shall  make  oath,  in  writing,  that  they  are  so  skilled  and  actually  employed 
at  the  time,  as  their  regular  vocation,  in  one  of  the  above  trades,  which  affi- 
davit, shall  only  be  prima  facie  evidence  of  the  facts  therein  stated." 

In  reference  to  the  conscription  act  of  September,  it  is  clear,  "  the  time"  is 
when  the  party  is  ordered  into  service  ;  that  being  the  time  when  the  affida- 
vit is  called  for,  to  enable  him  to  claim  exemption.  But  in  reference  to  the 
conscription  act  of  April,  it  is  not  so  easy  to  fix  the  time.  The  difficulty  arises 
from  the  fact,  ijint  the  exemption  act  i>  applicable  to  ooib  conscription  acts- 
one  of  which,  was  passed  six  months  before  the  other,  and  after  it  had,  in  a  great 
measure,  been  carried  into  effect.  In  my  opinion,  "  the  time"  is  the  same  in 
reference  to  the  act  of  April,  as  in  reference  to  the  act  of  September,  to  wit, 
when  the  party  is  ordered  into  service.  Had  the  time  <tf  the  passage  of  the 
act  been  intended,  it  is  reasonable  to  presume,  that  the  words  would  have 
"been  "now  actually  employed,"  as  in  the  clause  just  preceding,  in  respect  to 
physicians,  "  at  this  time."  The  policy  of  exempting  shoemakers,  &a.,  being 
cot  to  favor  the  individual,  but  to  subserve  the  public  interest,  which  was 
greatly  prejudiced  by  taking  tradesmen  from  their  Occupations — it  was  im- 
material whether  the  tradesman  was  under  or  over  the  age  of  33  years. 

The  material  inquiry  is,  was  he  Vorking  for  the  public  at  the  time,  which 
naturally  refers  to  the  time  when  he  was  called  off  from  his  trade — taking 
the  distinction  between  volunteers,  who,  of  their  own  accord  had  quit  their 
trades,  and  conscripts,  who  had  been  laken  from  their  trades  by  act  of  law 
and  should  be  considered  in  reference  to  the  intended  exemption  as  still  at 
their  trades.  This  construction  is  called  for  by  the  rule,  "  the  same  words  in 
the  same  statute,  ought  to  have  ihe  same  meaning,"  and  as  in  reference  to 
the  act  of  September,  the  meaning  certainly  is,  when  the  party  is  ordered 
into  service,  the  same  words  cannot  have  a  different  meaning  in  reference 


* 


70  IN  THE  SUPREME  COURT. 

In  the  matter  of  Guyer. 

i 1__ ! 

not  being  in  the  State,  or  to  his  not  having  been  enrolled  by 
an  oversight  or  neglect  of  duty  on  the  part  of  the  enrolling 
officer,  without  default  on  the  part  of  the  party  himself,  (which 
is  one  of  the  cases  before  us,)  or  if  enrolled,  that  he  was  not 
ordered  into  service  by  similar  laches  of  the  officer,  (which  is 
another  case  before  us,)  or  to  the  fact  that  when  enrolled,  the 
party  was  detailed  to  work  as  a  shoemaker,  or  blacksmith,  or 
wagonmaker,  in  the  employment  of  a  government  contrac- 
tor, the  person  so  detailed,  receiving  no  bounty }  or  pay,  or 

to  the  act  of  April.  Had  it  not  been  the  intention  to  include  all  shoemakers, 
&c,  without  regard  to  age,  this  result  would  have  been  avoided,  by  adding 
the  words,  "  provided  no  shoemaker,  &c,  shall  be  exempted,  who  is  now  in 
service,  or  has  been  ordered  into  service."  So,  the  question  is  narrowed  to 
this :  Can  the  Courts  add  these  words  to  the  act  ?  I  see  no  ground  on  which 
the  omission,  if  it  be  one,  can  be  supplied  by  construction.  It  was  urged  by 
Mr.  Scott,  that  the  public  interest  required  as  many  soldiers  as  could  be  rais- 
ed, therefore,  an  intention  to  exempt  any,  who  were  already  in  service,  or 
who  ought  to  have  been  in  service,  can  only  be  infered  from  plain  and  direct 
words.  This  was  met  by  Mr.  Gilmer  with  the  suggestion,  that  the  public 
interest  required  that  tradesmen  should  not  be  taken  from  their  vocations, 
and  that  those  who  have  been  taken  off  by  act  of  law,  should  be  allowed  to 
return;  as  it" was  seen  the  public  interest  had  been  prejudiced,  and  it  was  a 
matter  of  difficulty  for  the  people  to  get  a  pair  of  shoes,  or  have  a  plough 
sharpened,  &c.,  and  that  the  benefit  of  a  matter  of  doubt,  if  there  be  one, 
arising  from  a  want  of  precision  in  an  act  of  Congress,  should  be  given  to  the 
citizens,  rather  tharj  to  the  Government. 

Giving  to  these  suggestions,  proper  consideration,  the  inquiry,  whether  the 
intention  was  to  consult  the  public  interest  in  the  army  or  at  home,  can  only 
be  answered  by  the  words  used.  The  clause,  under  consideration,  does,  "  in 
plain  and  direct  words,"  exempt  all  shoemakers,  &c,  and  does  not  except 
those  who  are  in  the  army,  or  ought  to  have  been  in  the  army,  at  the  pas- 
sage of  the  act,  and  the  indefinite  words  in  the  proviso,  "actually  employed 
at  the  time,"  cannot,  by  any  recognized  rale  of  construction,  make  the  ex- 
ception. 

And  it  does,  "  in  plain  and  direct  words,"  repeal  the  exemption  act  of 
April.  This  fact  has  an  important  bearing  on  the  question  of  construction ; 
for,  if  it  was  not  the  intention  that  the  additional  exemptions  should  apply  to 
persons  under  thirty-five,  why  repeal  that  act  ?  And  if  such  was  the  intention, 
the  only  way  in  which  it  can  be  carried  out,  and  the  exemption  act  be  made 
to  fit  the  conscription  act  of  April  (with  a  few  exceptionable  cases  like  Mills  and 


JUNE  TEEM,  1863.  71 



In  the  matter  of  Guyer. 

- — — - : ! — ______ > 

rations,  or  clothing,  as  a  soldier,  but  receiving  only  his  accus- 
tomed wages  as  a  journeyman  tradesman,  of  which  kind  is 
the  case  now  under  consideration,  and  several  other  cases  be- 
fore us,  or  whether  they  had  been  allowed  to  remain  at  home 
"  as  a  reserve,"  receiving  no  pay  as  soldiers,  under  the  provi- 
sions of  the  sixth  section  of  the  conscription  act  of  April. — > 
In  other  words,  we  draw  the  dividing  line  between  those  who 
had  become  soldiers,  and  those  who  had  not  left  the  walks  of 
private  life,  and  were  actually  employed  in  their  respective 
trades  at  the  date  of  the  passage  of  the  exemption  act. 

The  task  of  making  an  application  of  the  exemption  act  to 
a  conscription  act,  which  was  passed  six  months  before,  and 
had,  in  a  great  measure,  been  carried  into  effect,  (as  I  say  in 
Nicholson's  case,)  is  a  very  difficult  one.  It  is  hard  to  make 
the  one  fit  the  other.  The  Court  has  been  aided  by  very  full 
and  able  arguments  at  the  bar,  and  after  weighing  the  sug- 
gestions offered  pro  and  con,  and  taking  into  consideration  the 
act  of  9th  of  October,  1862,  (two  days  before  the  exemption 
act,)  which  authorizes  the  President  to  detail  from  the  army, 
persons  skilled  as  shoemakers,  (not  exceeding  two  thousand,) 
to  make  shoes  for  the  soldiers,  to  which  our  attention  Was  for 

Angel)  is  to  give  it  relation  to  the  time  when  the  party  was  ordered  into  service 
and  taken  from  his  trade. 

Whether  shoemakers,  &c.,  who  were  in  service  as  conscripts  when  the 
act  passed,  can  now  claim  exemption,  or  would  be  taken  to  have  waived  the 
right,  by  acquiescence,  in  afterwards  receiving  pay,  &c,  is  not  the  question 
now  presented. 

Nicholson  certainly  has  done  no  act  that  can  amount  to  a  waiver  of  his 
right;  he  has  not  received  the,  State  bounty — has  received  no  pay,  and  has 
done  nothing  from  which  acquiescence  can  be  applied. 

It  is  considered  by  me  that  Nicholson  is  entitled  to  exemption,  and  that  he 
be  forthwith  discharged,  with  leave  to  go  wherever  he  will.  It  is  also  con- 
sidered, that  Lieutenant  Anderson  (the  enrolling  officer)  pay  the  costs  of  this 
proceeding,  allowed  by  law,  to  be  taxed  by  the  clerk  of  the  superior  court  of 
Guilford  county,  according  to  the  statute  in  such  a  case  made  and  provided. 

The  clerk  will  file  the  papers  in  this  proceeding  among  the  papers  in  his 
office,  and  give  copies  to  Nicholson  and  Lieutenant  Anderson. 

R.  M.  PEARSON,  Ch.  J.  S.  C. 

At  Richmond  Hill,  May  4th,  1863. 


72  IN  THE  SUPREME  COURT. 

In  the  matter  of  Giiyer, 
_ 1 

the  first  time  called  by  Mr.  Bragg,  and  of  which  neither  mem- 
ber of  the  Court  was  before  apprised,  we  have  come  to  the 
conclusion  stated  above. 

On  the  one  hand,  a  construction  confining  the  operation  of 
the  exemption  act  to  the  few  persons  who  may  have  arrived 
at  the  age  of  eighteen  years,  after  the  passage  of  the  conscrip- 
tion act,  and  the  few  exceptionable  cases  where- persons  under 
thirty-five  years  of  age  had,  by  the  omissions  of  the  Confed- 
erate officers  not  been  enrolled,  would'  certainly  be  restrict- 
ing it  too  much;  on  the  other,  to  extend  its  operation  to  all 
shoemakers,  tanners,  &c»,  who  were  in  the  army,  would  seem 
to  carry  it  too  far,  and  the  act  referred  to  (9th  October,)  tak- 
ing men  out  of  the  army,  by  detail,  to  make  shoes  for  sol- 
diers, (restricting  the  number  to  two  thousand,)  is  inconsist- 
tent  with  the  fact,  that  two  days  thereafter,  it  was  the  inten- 
tion to  take  "  all  shoemakers,  tanners,  &c,  from  the  army, 
and  send  them  home  to  work  at  their  trades.  So,  that  broad 
construction  is  excluded.  The  same  act  furnishes  proof  that 
the  members  of  Congress  were  aware  of  the  fact  that  the 
number  of  artizans,  working  at  their  respective  occupations, 
was  not  enough  to  supply  the  necessities  of  the  public.  From 
this  we  arrive  at  the  conclusion,  without  going  into  a  particu- 
lar examination  of  the  words  used,  that  all  soldiers  were  to 
continue  in  service,  and  all  who  were  at  home,  actually  em- 
ployed at  their  trades,  should  remain  there,  and  be  exempted 
as  long  as  they  should  continue  to  work  at  their  trades,  at 
prices  not  exceeding  seventy-five  per  cent,  on  the  cost  of  pro- 
duction. 

This  construction  varies  in  some  measure,  from  that  given 
by  me  to  the  act  in  the  opinion  delivered  In  the  matter  of 
Nicholson  ;  but  the  difference  does  not  affect  any  case  now  be- 
fore us;  the  distinction  being  that  in  my  opinion  then,  soldiers 
were  embraced  by  the  exemption  act,  but  those  who  failed  to 
make  their  election,  and  afterwards  received  pay,  rations, 
clothing,  &c,  were  to  be  considered  as  having  waived  their 
right  to  exemption  ;  whereas,  in  the  opinion  of  the  Court,  in 
which  I  fully  concur,  soldiers  or  persons  who  had  been  placed 


JUNE  TEEM,  1863.  73 

In  the -matter  of  Grantham. 

in  the  military  service  in  the  field,  were  not  embraced  by  the 
exemption  act.  Its  practical  application  to  the  only  case  of 
the  kind  before  us,  {In  the  matter  of  Dixon,)  results  in  the 
same  way.  He  was  under  thirty-five,  was  in  the  army  as  a 
conscript  when  the  exemption  act  passed — had  received  the 
bounty,  pay,  &c,  of  a  soldier  afterwards,  up  to  November, 
1862,  and  was  not  entitled  to  exemption ;  whether  on  the 
ground  that  the  exemption  act  did  not  embrace  his  case,  or  if 
it  did,  that  he  had  waived  the  right,  makes  no  difference,  as 
in  either  view,  he  was  to  be  remanded. 

Pee  Curiam,    Let  the  petitioner  be  discharged,  and  recov- 
his  costs. 


In  the  matter  of  BAKFIELD  GRANTHAM,  a  shoemaker. 

The  conscription  act  requires  that  the  trade  on  which  the  claim  of  a  mechanic 
to  exemption  is  based,  shall  be  his  regular  occupation  and  employment,  and 
not  that  at  which  he  may  work  occasionally  and  at  odd  times. 

The  facts  are  stated  in  the  opinion  of  his  Honor. 

Everett,  for  the  petitioner. 
Strong  and  Bragg,  contra. 

Battle,  J.  The  petitioner  claims  to  be  exempt  from  mili- 
tary service  as  a  conscript,  upon  the  ground  that  he  was  a 
shoemaker.  The  testimony  offered  in  support  of  his  claim, 
shows  that  for  some  years  past,  he  had  a  small  farm  on  which 
he  worked  during  the  spring  and  summer,  but  during  fall 
and  winter  he  made  shoes  for  his  own  family,  and  for  some  of 
his  neighbors.  In  August,  1802,  lie  commenced,  and  contin- 
ued to  do  more  work  in  the  business  of  making  shoes  than  he 
had  been  previously  accustomed  to  do,  though  it  does  not  ap- 
pear that  he  devoted  himself  exclusively  to  that  occupation. 


74  IN  THE  SUPKEME  COUKT. 

In  the  matter  of  Dollahite. 

This  proof  is  not,  in  our  opinion,  sufficient  to  establish  the 
right  to  the  exemption  for  which  the  party  contends.  The 
conscription  act  requires  that  the  trade  upon  which  the  claim 
of  a  mechanic  to  exemption  is  based,  shall  be  his  regular  oc- 
cupation and  employment,  and  not  that  at  which  he  may  work 
occasionally  and  at  odd  times.  A  mechanic  is  excused,  from 
military  service,  not  for  his  own  ease,  and  as  a  favor  to  him- 
sepf,  but  for  the  benefit  of  the  public,  whom,  it  is  supposed, 
that  he  can  serve  better  by  working  at  his  trade,  than  in  any 
other  way.  He  must  stand  towards  the  community  upon  the 
same  footing  that  a  common  carrier  does,  so  that  all  persons 
who  may  have  occasion  to  claim  the  aid  of  his  services,  may, 
at  all  seasonable  times,  be  able  to  obtain  it. 

The  petitioner  has  not  shown  himself  to  be  within  the  lim- 
its of  this  rule,  and  his  application  for  a  discharge  is,  there- 
fore, rejected. 

Pek  Cukiam,  Application  rejected. 


In  the  matter  of  MOORE  W.  DOLLAHITE,  a  School  Teacher. 

A  school  master  whose  occupation  had  been  suspended  for  twelve  or  eighteen 
months,  within  the  term  required  for  his  previous  pursuit  of  the  business, 
is  not  entitled  to  an  exemption  under  the  act  of  Congress,  passed  on  the 
11th  of  October,  1862. 

This  was  a  petition  for  a  habeas  corpus  by  the  plaintiff,  who 
is  a  citizen  of  Person  county.  The  facts  of  the  case  appear 
from  the  opinion  of  the  Court. 

Winstead,  for  the  petitioner. 

Strong,  Dist.  Atto.  of  Con.  States  and  Bragg,  contra. 

Battle,  J.  The  petitioner  claims  to  be  exempted  from 
military  service,  in  the  army  of  the  Confederate  States,  upon 


JUNE  TEEM,  1863.  ?5 


In  the  matter  of  Dollahite. 


the  ground  of  being  the  teacher  of  a  school.  The  clause  of 
the  exemption  act,  which  relates  to  his  case,  is  as  follows : — 
"  all  presidents  and  teachers  of  colleges,  academies,  schools, 
and  theological  seminaries,  who  have  been  regularly  engaged 
as  such,  for  two  years  previous  to  the  passage  of  this  act," 
which  was  the  11th  October,  1862.  He  states  that  he  had 
been  engaged  as  a  teacher  for  ten  or  twelve  years  before  the 
passage  of  the  conscript  act,  but  that  his  school  had  been  sus-^ 
pended  for  twelve  or  eighteen  months,  in  consequence  of  the 
troubled  condition  of  the  country.  He  states  further,  that  at 
the  time  of  his  enrolment,  he  was  again  engaged  in  teaching 
a  school. 

It  seems  from  the  papers  which  accompany  the  petition, 
that  the  case  of  the  petitioner  had  been  referred  by  the  com- 
mandant of  the  camp  of  instruction,  to  the  Bureau  of  Con- 
scription at  Eichmond,  when  the  following  decision  was  pro- 
nounced :     "Exemption  declined.    The  object  of  the  law  of 
October  11th,  1862,  in  defining  certain  classes  to  be  exempt 
from  the  operation  of  the  conscript  acts,  was  not  to  attach 
privileges  to  those  classes,  but  to  abstain  from  breaking  up  the 
existing  civil  and  industrial  organizations  of  the  country. — 
Exemptions,  therefore,  have  reference  to  the  status  at  the  date 
of  the  passage  of  the  act.     ]STo  antecedent  or  subsequent  com- 
ing within  the  classes  enumerated,  can  entitle  to  an  exemp- 
tion.    In  the  case  of  school  teachers  and  physicians,  the  pro- 
fession must  not  only  have  been  in  existence  on  October  11th, 
1862,  but  also  the  pursuit  of  it,  both  then  and  for  a  specified 
time  previous."    We  concur  in  the  above  decision,  and  think 
that  the  reasoning  upon  which  it  is  founded,  fully  sustains  it. 
As  to  the  time  when  the  status  of  some  of  the  enumerated 
classes  is  to  be  fixed,  we  may  differ  in  opinion  from  the  dis- 
tinguished head  of  the  Bureau  of  Conscription,  but  as  to 
school  teachers  and  physicians,  the  act  is  express,  and  leaves 
no  room  for  doubt. 
Pek  Cukiam,    The  petitioner  must  be  remanded  back  to 
the  custody  from  which  he  was  taken,  and 
must  pay  the  costs  of  this  proceeding. 


76  IN  THE  SUPEEME  COUET.      . 

"In  the  matter  of  Bitter. 

In  the  matter  of  ELIAS  RITTER. 

A  person  who  had  been  drafted,  and  who  had  put  in  a  substitute  that  was  ac- 
cepted by  the  officer  appointed  to  act  on  that  business,  was  held  not  liable 
to  be  conscripted  under  the  act  of  September,  1862.  > 

The  circular  of  the  War  Department,  (luted  20th  October,  1861.  allowing  sub- 
stitutes to  be  received  after  the  companies  were  formed  and  actually  in  the 
service,  applies,  by  a  liberal  construction,  to  companies  while  in  the  condi- 
tion of  being  formed  and  organized  or  reuruited,  and  when  a  substitute  is 
received  under  the  latter  circumstances,  several  of  the  formalities  for  ob- 
taining a  discharge,  become  immaterial. 

Petition  for  a  Habeas  Corpus,  before  the  Supreme  Court, 
Elias  Eitter,  the  petitioner,  on  the  call  on  the  State  of  North 
Carolina  for  troops,  was  drafted  on  25th  of  February,  1862, 
to  go  into  actual  service,  fie  then  hired  a  substitute  over 
eighteen  years  of  age,  by  the  name  of  Medlin,  for  three  years 
or  the  year,  who  was  received  by  Ool.  Eichardson,  an  officer 
authorised  by  the  government  to  receive  substitutes.  Medlin 
entered  into  the  service  for  the  war,  and  the  petitioner  receiv- 
ed his  discharge  from  Col.  Eichardson.  Under  the  conscrip- 
tion act  of  April,  1862,  Eittcr  was  nut  called  on,  (being  over 
thirty-five,)  but  under  that  of  September,  1862,  (being  under 
45)  he  was  enrolled  and  ordered  into  the  camp,  near  Ealeigh, 
and  was  held  there  against  his  will  by  the  officer  in  command. 

It  was  insisted,  on  the  argument,  that  as  no  company  was 
organised  when  the  substitute  was  offered' and  received,  that 
he  did  not,  and  could  not,  comply  with  the  requisitions  of  the 
department  in  furnishing  of  substitutes. 

The  regulations  of  the  War  •Department,  alluded  to  above, 
are  as  follows : 

"  Wak  Department,.  Eichmond,  Oct.  20,  1861. 

"1.  When  any  non-commissioned  officer  or  soldier  of  the 
volunteer  service  desires  to  procure  a  substitute,  lie  shall  first 
obtain  the  written  consent  of  the  Captain  of  his  company  and 
of  the  commander  of  his  regiment  or  corps,  a  duplicate  of 
which  lie  shall  forward  to  the  substitute. 

"  2.  The  substitute  shall  then  obtain  from  some  surgeon  and 
some  commissioned  officer  in  the  service  of  the  Confederate 
States,  a  certificate  of  his  fitness  for  service  and  of  his  having 


JUNE  TERM,  1863.  77 

In  the  matter  of  Bitter. 

been  mustered  into  the  service  of  the  Confederate  States  for 
the  war,  no  matter  what  the  term  of  the  service  of  his 
principalmay  be,  and  these  several  certificates  shall  serve  as 
a  passport  to  the  holder  to  join  the  regiment  or  corps  to  which 
his  principal  belongs — he  paying  the  expenses  of  his  own 
transportation. 

"  3.  When  a  non-commissioned  officer  or  soldier  is  entitled 
to  discharge,  by  reason  of  a  substitute,  the  Captain  of  his 
company  and  the  commander  of  his  regiment  or  corps  shall 
give  him  a  certificate  to  that  effect,  stating  that  the  substitute 
furnished,  according  to  the  regulations,  is  actually  on  duty 
with  the  regiment  or  corps  ;  that  the  holder  of  the  certificate 
is  in  no  wise  indebted  to  the  Confederate  States,  and  that  he 
is  not  entitled  to  transportation  at  the  expense  of  the  govern- 
ment, and  this  certificate  shall  serve  the  holder  as  a  passport 
to  leave  the  camp  and  travel  to  his  home. 

"  4.  If  it  shall  be  found  that  a  non-commissioned  officer  or 
soldier,  discharged  by  reason  of  a  substinte,  is  indebted  to  the 
government,  the  commander  of  the  regiment  or  corps  giving 
the  discharge,  will  be  held  accountable  for  the  same,  and  any 
back  pay  due  said  non-commissioned  officer  or  soldier,  shall 
be  drawn  and  receipted  for  by  the  substitute  at  the  next  pay 
day.    • 

"  5.  Commanders  of  regiments  or  corps  shall,  under  no  cir- 
cumstances, permit  substitutions  in  their  commands  to  ex- 
ceed one  per  month  in  each  company,  and  all  such  cases  shall 
be  noted  in  the  following  morning  report  of  the  regiment  or 
corps,  in  which  they  occur,  and  in  the  next  muster  roll  and 
monthly  return." 

McDonald,  for  the  petitioner. 
Strong  and  Bragg,  contra. 

Peaeson,  C.  J.  We  are  of  opinion  that  the  circular,  from 
the  war  department,  dated  October  20,  1861,  by  which  sub- 
stitutes were  allowed  to  be  received  after  the  companies  were 
formed  and  actually  in  service,  applies,  by  a  liberal  construe- 


78  IN  THE  SUPREME  COUET. 

In  the  matter  of  Bitter. 

tion,  to  the  companies  while  in  the  act  of  being  formed  or  or- 
ganized, or  recruited,  without  the  necessity  of  the   details, 
which  were  made  material  by  the  fact  that  when  the  party 
was  in  service,  and  wished  to  put  in  a  substitute,  many  cir- 
cumstances had  to  be  attended  to,  in  order  to  prevent  confu- 
sion— as  the  back  pay  or  indebtedness  of  the  principal  and 
mode  of  getting  home,  and  then  to  allow  too  many  at  a  time, 
might  disorganize  the   company ;  but  when  the  companies 
were  in  the  act  of  being  organised,  no  considerations  of  that 
nature  were  presented,  and  the  purpose  was  fully  answered, 
by  putting  in  an  able  bodied  man  for  the  war,  and  if  proof  can 
be  made  that  these  essentials  were  complied  with,  the  object 
is  fully  answered  when  the  substitute  went  into  the  service, 
and  is  still  there,  or  has  been  killed,  or  disabled. 

Per  Curiam,  *  Petitioner  discharged. 


